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THE REPUBLIC AS A FORM OF 
GOVERNMENT. 



fevP^55 



THE REPUBLIC 
AS A FORM OF GOVERNMENT 



OR 



THE EVOLUTION OF DEMOCRACY 
IN AMERICA. 



By JOHN SCOTT 

{Of Fauquier). 
HOR OF " THE LOST PRINCIPLE OF THE FEDERAL GOVERNMENT ' 
AND OF "PARTISAN LIFE." 






4 " Man, as the minister and interpreter of nature, does and understands as much 

jbservation on the order of nature, either with regard to things or the mind, 

permit him, and neither knows nor is capable of more." Bacon— Novum Organum. 

" The wit and mind of man, if it work upon matter, which is the contemplation of 

the creatures of God, worketh according to the stuff and is limited thereby ; but if it 

:pon itself, as the spider worketh his web, then it is endless, and brings forth 

ideed cobwebs of learning, admirable for the fineness of thread and work, but of no 

substance or profit." Bacon— A dvan^judtLLo^Learmng. 




LONDON: 

CHAPMAN AND HALL, Limited. 

1890. 



V 



\ 



3^ 



As a token of respect and affection I desire to offer this 
product of my pen to the venerable seat of learning, King's 
College, Old Aberdeen, in which my ancestors and col- 
lateral kindred were professors continuously through so 
extended a period. My family in Virginia all look with 
satisfaction and pride to that luminous centre. 

The Author. 



Entered according to the Act of Congress in the year 1889, by John 
Scott, of Fauquier, in the office of the Librarian of Congress at 
Washington. 

{All rights reserved. ) 



I 



INTRODUCTION. 




PLAN OF THE WORK. 

N the summer of 1 867, in allusion to the war 
of the American sections, then recently over, 
I observed to a London publisher, the head 
of one of the great houses, that all candid 
thinkers must agree now that the Republic 
,does not afford a stable footing for constitutional 
government. Quickly, in response, he proposed that 
I should write a book for him to prove what I had said 
to be true, but stipulated that the work should be com- 
1 pleted by the end of two years. I told him I would 
think of it, and mentioned the publisher's proposition 
to a cultivated and intelligent English gentleman re- 
siding in London, one of the literati of that famous 
capital, to whom I had carried a letter of introduction, 
and who, when in America, had seen " The Lost 
Principle," then a new book. But he replied, " The 
time is too short ; take four years, and the book will 
fructify when you are in the grave." The subject 
dropped from my mind, but, after my return to my 
home in Fauquier county, it came back to me and 
dwelt with me, and this volume has been the result, after 
the impediments and delays of official engagements. 

Its title might indicate that the book is a treatise 
upon Republican government, and so it is intended to 
be, although it is occupied throughout with an exami- 
nation into the working and principle of the Republic 



vi Introduction. 

of the United States, and general propositions are 
discussed with reference exclusively to that instance. 
Distrusting theory, so prolific of error, I determined 
to apply to my subject, with the utmost strictness, 
the inductive method of inquiry, as recommended in 
the "Organum" of Bacon and practised in the sciences, 
satisfied, by that process, that the Republican system, 
now uppermost in men's minds, best would be laid 
open. If Bacon's method be indeed applicable to 
government, we must bring forward particulars, or in- 
dividual cases, with a view to establish some general 
conclusions ; " for induction is a kind of argument 
which infers respecting a whole class what has been 
ascertained respecting one or more individuals of that 
class." x 

The example of the United States, presenting so 
grand a scale of experiment, is so pregnant with in- 
struction, indeed in its lesson is so complete, that we 
need not proceed further in the investigation to enable 
us to deduce satisfactory conclusions with respect to 
the nature of popular government. In parvo, this is 
the plan of my book — an humble contribution to safe 
government whilst a Democratic revolution threatens 
the stability of Europe. 

A British author of celebrity and genius objects to 
Democracy, that it tends to degrade society and 
government by putting the uninstructed in the lead, 
achieving, if it be true, a victory over nature : " It 
makes," says the author, " the ignorant multitude the 
judges of the largest questions, both political and 
religious, till we shall have no institution left that is 
not on a level with the comprehension of a huckster 
or a drayman. There can be nothing more retro- 
grade — losing all the results of civilization, all the 
lessons of Providence — letting the windlass run down 
after men have been turning it painfully for genera- 
tions." 2 These are but the plausible guesses of 

1 Whately. 2 George Elliot. 






Introduction, vii 

speculation, but presenting an untenable issue to the 
Republic, and producing all the injurious results con- 
sequent upon defeat. It is based on the erroneous 
belief that an unlettered majority govern in a Republic. 
The least observant tourist from the Old World who 
visits the West speedily detects the error, and a par- 
tiality for popular government may chance to settle 
into a conviction in favour of it ; for it is as impolitic 
in argument as in war to join battle on a field which 
gives the advantage to your adversary. 

For more than a century Democracy, in the United 
States of America, has been the supreme power in the 
State, yet has civilization in that great country betrayed 
no tendency to retrace its steps, nor its vital germs any 
inclination to sicken or die, but, stimulated by enter- 
prise and the robust genius of the Anglo-American, 
healthy growth is seen in every direction. Those in- 
dustrious and inseparable partners, labour and capital, 
are found accumulating their vast stores and various 
works on every theatre ; whilst unmolested and pro- 
tected by all the guards of the law, the aristocrat of 
wealth — the fortunate and envied nobleman of the Re- 
public — enjoys his palace in Fifth Avenue. Nowhere 
is acknowledged so soon, and room made for it, the 
native superiority of intellect and culture, the inclina- 
tion in the Republic being rather towards the disesteem 
and neglect of useful mediocrity. But if these dreads 
should all be justified by the event, it is hardly pro- 
bable that the majority, composed of various and rude 
materials, would decline a mode of political life, if the 
principal purposes of government are secured by it, 
because it vulgarizes society, or, in nicer points, causes 
it to retrograde somewhat. If the opposer of popular 
government desires to bring the system into discredit, 
and to banish it from the inclinations of men — to shut 
the wide-extended and flaming gates of Avernus — 
some argument must be discovered to convince the 
people, or the thinkers among them, that their own 



viii Introduction. 

welfare demands the overseership of the nation to be 
intrusted to other hands than their own — that the 
safety of the ship of State requires a captain or a 
commodore to be put in the command rather than 
that great trust should be confided to the crew and 
passengers. Not until that opinion is rooted in a 
nation's creed will conservatism in government and 
society finally be victorious, for the argument of 
interest, when cleared of doubt, always prevails. The 
questions to be put and answered in this highly im- 
portant inquiry* are : " How has the experiment 
resulted where a people's government has been satis- 
factorily tested ? Does it act impartially among the 
contestants for its favour and regard ? Does it govern 
with an equal or a steady hand ? Or, is it controlled 
by associated capital or by a selfish voting combina- 
tion among the people, working for its own emolument 
and benefit, yet professing to be a popular agency, 
whilst the indigent and feeble are pushed to the wall ? 
In short, is not the Republic a plutocracy instead of a 
democracy? Do the people govern in the Republic, 
or, whilst nominally sovereigns, are they not in fact 
superseded by a subtle power which the system gene- 
rates ? If so, what is that power, and does it answer 
for permanent and successful government ? Finally, 
does the popular form promise stability, or does it 
tend irresistibly to confusion and anarchy, to be suc- 
ceeded by the calm of the sword ? — a government of 
Oliver Cromwell and his military saints, or other kind 
of army dominion ? " With fluent speech theory does 
not respond to these interrogations with greater satis- 
faction than it does to the dark problems of science 
which, in this splendid era of discovery, experimental 
research is unfolding each hour to curiosity or interest. 
Amidst her infinite distances, her cloud-capt moun- 
tains, her forests, her prairies, her inland seas and ma- 
jestic rivers, America, in rustic attire, but informed by 
her own experience, stands ready to answer all these 



Introduction. ix 

questions, and the polite and lettered East may learn 
from the New West the philosophy of the Republic. 
In his day, in defence of the settled order of England, 
Edmund Burke, with the hundred arms of Briareus, 
strove with French Democracy and triumphed — a 
single Spartan holding Thermopylae — and now from 
the cells of philosophy great Bacon is invited to come 
forth and combat American Democracy. Seated under 
his burning lamp, we have discovered that the body of 
society is so pressed and joined together, and its ele- 
mentary particles are so engaged, that a people cannot 
be self-governed, there being, when we come to under- 
stand our subject, to appreciate the problem to be 
solved, no such thing, either in the present or in history, 
as a government by the people, and that, because of the 
inability of the sovereign power to act, a cunning and 
plausible pretender intrudes into the throne. The acqui- 
sition and development of this seasonable but unwelcome 
truth from the teachings of his "Organum" will prove 
one of the greatest of the many benefits which Francis 
of Verulam has conferred on mankind. Inasmuch as 
popular self-government is not possible, for a far dif- 
ferent and more satisfactory reason than that the 
working poor man cannot, with safety to the State, be 
intrusted with the ballot, and therefore ought to stand 
excluded, we get rid of a question full of irritation and 
mischief by informing the people themselves, the dis- 
cerning mass of society, what that more satisfactory 
reason is. States then will be founded on facts and 
the eternal principles of correct reason, and not on the 
theories and conjectures of speculation. 

According to Boswell, Doctor Johnson thought a 
book ought not to be too large to be carried in one's 
pocket, and I have compelled this one to conform to 
that convenient size. 

Warrenton, Fauquier County, Virginia, 
United States, 1889. 



x Introduction. 

Note. — " Plutocracy." This appears to be a recent word, 
introduced into the American dictionary of the English language 
to indicate the body into which the Republic of the United States 
has now degenerated. It is not found in Doctor Noah Webster's 
great lexicon of our language, as finally it left its creator's hands, 
nor yet is it to be found in the body of the late Yale edition of 
" Webster Unabridged " (1888), but we discover it, almost in the 
act of birth or naturalization, in the supplement of new and un- 
common words attached to the work. In the inevitable process 
of evolution, — of the flower from the bud, of the serpent from the 
egg, — plutocracy has grown out of democracy. In the natural 
order the object or thing first presents itself, and then men find 
a name for it. So it has been in this case. With its Greek 
original and recent citizenship, " plutocracy " is thus defined by 
the ripe scholars of Yale University : "A form of government in 
which the supreme power is lodged in the hands of the wealthy 
classes alone ; government of the rich ; also a controlling or 
influential class of rich men." 




CONTEXTS. 



CHAP. PAGE 

I. Subject stated and induction applied to it . . . i 
1 1. The Right of Secession examined ; its Recognition 

by the Fathers of the Republic 7 

III. Honourable Robert Eden Scott; his Conference 
with Secretary Seward. Montgomery. Presi- 
dent Davis. General Toombs. A Mission to 

Richmond 35 

IV, Federal Reform 57 

V. Annapolis Convention ; Federal Convention recom- 
mended and called. A New Constitution . . 96 

VI. Ratification 139 

VII. Cause of Governor Randolph's Defection from the 
States Rights Party. Ratification in New York 
and other States. Deception practised by Madi- 
son to procure Ratification 155 

Edmund Ruftm. His Tragic Death 167 

The Theory of the New Constitution . ... 168 

Sectional Equilibrium in Congress. The Northern 

Phalanx 183 

XI. Broken Covenants 212 

XII. The Indigo interest and the Tariff of 1828. The 
Fisheries of New England. The Tobacco in- 
terest. Jefferson's Mission to France .... 228 

XIII. The Machine, and Machine Politics. The States 

Rights Party organized by Jefferson. Washing- 
ton's Farewell Address 242 

XIV. The Electoral Commission. Civil War averted 
by it 252 

Civil War again imminent. Tammany Society . 286 

The Political Adventurer. Induction applied . . 290 
The Entail and the Entail Lease. M. de Tocque- 

ville. Conclusion 296 

Appendix 303 




CHAPTER I. 

" Yon same star, that's westward from the pole, 
Had made its course to illumine that part of heaven 
Where now it burns." 

Hamlet, Act i. Scene i. 
" Many of the changes, by a great misnomer, called Parlia- 
mentary reforms, had they taken place, not France but England 
would have had the honour of leading up the death dance of 
democratic revolution."' — Edmund Burke. 

• ; Few people take the trouble of trying to.find out w T hat demo- 
cracy really is. Democracy is nothing more than an experiment 
in government more likely to succeed in a new soil, but likely to 
be tried in all soils ; which must stand or fall on its own merits, as 
others have done before it. For there is no trick in perpetual 
motion in politics any more than in mechanics."— fames Russell 
.7, " Democracv.'' 




MERICA is a country in which one of 
the greatest political experiments, in the 
history of the world, is now performing, 
and presents the most profound and mo- 
mentous study to the statesman and 
philosopher. In view of this declaration from so 
excellent a thinker and writer as Washington Irving, 
it may be a useful work, after the lapse of a century, 
to examine, from the familiar standpoint of a citizen, 
the Republic of the United States by the full light of 



2 The Repttblic as 

its recorded action. On account of her grand ex- 
periment with the Republic, if it has proved successful, 
America, naturally, would be a guiding star to other 
nations in the search after democratic liberty ; but 
if the trial, when understood, has been disastrous, 
her example ought to serve as a beacon, a signal 
light on a headland, to warn the political mariner 
not to visit that dangerous shore. If on that re- 
mote continental theatre, with a constitution sprung 
from the very brain of Jupiter, democratic govern- 
ment cannot endure the crucial test of experiment, 
but if, even now, it is manifest to the discerning 
eye that the unstable and trembling structure is but 
a stage in the progress of a great people to anarchy, 
and its consummation military despotism, every pru- 
dent mind will conclude the ill-success to be refer- 
able to incurable infirmities in government of the 
popular type, and not to accidental, or remediable, 
causes. Moreover it will be a wise lesson to teach, 
that power, in that stronghold of democracy, has 
manifested its eternal characteristic, and has estab- 
lished a cruel despotism of section and class, though 
it still flatters the individual with the titles of liberty. 
To the eye of the astronomer, the moon, as it swims 
in the firmament, is a body of exceeding bright- 
ness, but when he applies his telescope, the beautiful 
orb loses its splendour, and reveals itself as a region 
of volcanic fires, and ruin seems of ancient pile ; so 
America, as seen from without or within. Republics 
consist of maxims and principles of liberty and 
justice by which, as by a chart of navigation, their 
governments are supposed to be conducted. As 
salt loses its savour, venerable charters lose authority. 
Governments then become failures, and not the less 
failures because veiled by the ceremonies and names 
of an obsolete liberty. Forms survive the realities 
which they invested, spirits of despotism inhabit 
bodies of liberty, and a hull is all that is left of a 



a form of Government. 3 

vanished republic. The banner of a republic flutters 
prom the tower, but an enemy has silently captured 
the fortress. Hitherto speculation with its illusions 
has been the field on which democratic government 
has been considered. The American fathers judged 
it by that uncertain, fitful, and transient light. But 
we have better oracles. If we do not discover the 
truth, the blame will rest with our own indolence or 
credulity ; for government is but a province of nature, 
and is embraced in the extensive jurisdiction of the 
inductive philosophy. Its forces are visible and mea- 
sured agents ; its results are public facts. But whilst 
science adds this great kingdom to her growing empire, 
justice demands that, humbly and reverentially, she 
acknowledge a further debt to the immortal Bacon, 
whose philosophy, revealing the unknown, and making 
the obscure manifest, accompanies the ages until, in 
every district and corner of Nature's kingdom, it 
establishes " the reign of man," unfolding to creation 
the wonderful destiny it has prepared for him. Con- 
tinually science, under wise pilots, is sending forth 
ships to explore unvisited seas. Now a hemisphere 
is discovered, now a continent, or some isle, deep- 
hidden from human curiosity ; but the spoils of all are 
gathered up and laid at the feet of this throned, island 
Empress-Queen, that her power may be augmented, 
and the sphere of her beneficence and glory enlarged. 
The Republic of the United States was regarded, 
by the men who founded it, as an experiment in 
politics in which the colonies had been embarked by 
the intrigues of the Court of France, seeking, in the 
bitterness of national animosity and rivalry, to dis- 
member the British Empire. 1 When the existing 

1 " Hardly a month after the last Acts had been passed, the 
French Ambassador at London addressed himself to Franklin 
in a style that discovered to this acute politician the wish of the 
French Court to inflame the quarrel between Britain and America. 
Nor was this the only, or most notable, attempt of the French 



4 The Republic as 

constitution of the Republic was submitted to State 
conventions for rejection, or acceptance, it was urged, 
as an argument in favour of acceptance, by James 
Wilson of Pennsylvania, one of its skilled architects, 
that " This system, if adopted, will lay a foundation 
for erecting temples of liberty in every part of the 
earth." The statesman spoke advisedly, for, from the 
period of the installation of that government, it has 
been a propaganda of republican principles. Within 
the sphere of its activity and influence, this has been 
effected by open patronage of popular government, 
yet more even has been done by the silent influence 
of example, confined only by the expansive circle of 
ideas. The prophetic utterance, at this time, the more 
challenges attention, as one of those fair temples has 
arisen, like an exhalation, and has planted itself in 
Western Europe, where but yesterday a splendid 
monarchy stood, exciting uneasiness in every states- 
man of the Old World. It looks as though the 
democracy of the West, in a crusade of ideas and prin- 
ciples, has precipitated itself on Europe, shaking and 
undermining monarchical government, deep-rooted in 
habit and old tradition. 

It brings to mind a prophecy of M. de Tocqueville, 

Court to animate the spirit of resistance of the Americans, and 
promote a total breach with the British nation. Both prior and 
subsequent to the present period, various emissaries employed 
by the Court of France travelled in disguise through the American 
colonies, examining in what points the British Dominion'was most 
vulnerable, and seizing every opportunity to fan the flame of dis- 
content, and insinuate that revolt would be facilitated by foreign 
assistance. The most distinguished of these was a German baron 
named Dekalb, a brave and enterprising officer, who had long 
served in the French army. The employment of Dekalb and 
other agents in America is an undisputed fact. He, with other 
French officers in the American service, maintained a close 
correspondence in cipher with the French Court." — Frosfs 
" History of the United States." 

Botta states that the zeal of the patriots of Boston was stimu- 
lated by French gold— what Dean Swift calls "the yellow boys." 



a form of Government. 5 

contained in his well-remembered work on the social 
and political institutions of America, written and pub- 
lished more than forty years ago, that democracy, at 
no distant date, would assert and establish its domi- 
nion everywhere within the Christian pale. He ap- 
peared to believe that it was a ground-swell of human 
action and thought, and that the invisible force which 
impelled the tides had set it in motion. The intelli- 
gence and craft of the statesman, then, would be 
exercised in renovating and remoulding the ancient 
states of Europe, and adjusting them to this new 
power. That philosopher, or pseudo-philosopher, said : 
is The organisation and establishment of democracy in 
Christendom is the great problem of the time. To the 
evils which are common to all democratic peoples the 
Americans have applied remedies which none but 
themselves ever thought of before ; and though they 
were the first to make the experiment, they have suc- 
ceeded in it. Those who hope the monarchy of 
Henry IV. or Louis XIV., appear to be affected with 
mental blindness, and when I consider the condition 
of several European nations — a condition to which all 
others tend — I am led to believe they will soon be 
left with no other alternative than democratic liberty 
or the tyranny of the Caesars." 

With this alarming prediction sounding in our ears, 
it will not be considered irrelevant to the times in 
which we live, or to the events that press hard upon 
us for solution, and before Europe takes another step 
in that direction, to invite the reader to examine for 
himself, not looking through the glasses of M. de 
Tocqueville, and ascertain how the experiment of 
self-government has prospered in the New World, 
where a safe unenvied asylum has been offered to 
popular government, with every condition most favour- 
able to a successful trial of it — an extensive, fertile, 
vacant country, suited to every occupation of prosper- 
ous industry ; an intelligent, civilized people of the 



6 The Republic as 

foremost breed, trained to such institutions ; wise and 
able men to plan and execute for it, and the crowning 
advantage of isolation from injurious contact with 
older civilizations charged with opposite ideas. From 
the forests of Maine and the prairies of Wisconsin, to 
that remote land, amid Antarctic snows, which lies 
beyond the Straits of Magellan, Ultima Thule, demo- 
cracy has held its court and high carnival. There it 
has wantoned at will, and has displayed all its good 
qualities, and every vice of its undisciplined and fro- 
ward nature, — its ferocity, its despotism, its cruelty, its 
grossness, its avarice, its venality, and inevitable ten- 
dency to misrule and anarchy. Wisest statesmen have 
constructed dykes and walls to confine it, but, when 
its passions are stirred, it has shown itself not more 
amenable to authority than ocean when scourged by 
the tempest. This century, in the annals of the human 
race, will be distinguished and remembered as the 
century of democratic experiment, when every Euro- 
pean State contained a republican party in the ranks 
of its population. 

But in that century of triumphant democratic life 
some truths have been obtained which it will be pro- 
fitable for Europe to know whilst it is engaged with 
the problem which France, so suddenly, but England, 
more gradually, has forced on it for solution. But, 
before we proceed to examine the conclusions to be 
deduced from the constitutional experiment in the 
West, there is a preliminary inquiry which merits and 
will receive attention, — the inherent right of every 
political community, represented by its majority, to 
establish, or abolish, government at pleasure. That 
important principle, in the politics of every free state, 
was obtained from the revolution which disjoined the 
North American colonies from the parent state. How 
has it fared in the century of American experience in 
free government ? Has it been honoured and con- 
firmed as still the sub-base of all republican government, 



a form of Gove nunc at. 7 

or has it been insulted, repudiated, and overthrown ? 
In this connection no question of so great moment 
could engage attention. It vitally concerns the voting 
mass, for from it has been derived all their right to 
govern society. 




CHAPTER II. 

HE Civil War of 1861, which incarnadined 
the Union, was the first explosion of the 
political volcano charged with combus- 
tibles by Washington and his co-workers. 
Before that time the Federal mountain 
had emitted smoke and flame, but then, from its fuelled 
entrails, the eruption burst forth. As, amid scenes of 
desolation and sorrow, the war was ended, mankind 
beheld half the states of the Union return, with shat- 
tered ranks, to a connection which they hated, under 
the compulsion of great armies, and loaded with the 
disabilities and burdens resulting from a conquest. 
They saw those subjugated states despoiled of every 
vestige of political right, and reduced to the lowest 
state of dependence, by a government which, in great 
part, was their own recent and voluntary creation. 
Truly a war of conquest was an instructive spectacle 
in the politics of a series of connected and self-govern- 
ing states ! Europe, an interested, and not unintelli- 
gent, observer of democratic development in the West, 
knew then, or might have known, that the rulers of the 
great Republic had destroyed the foundation on which 
its designers and builders had erected it, and had 
placed it on an entirely new bottom. From that time 
the Republic of the United States, regarded as a model 
for imitation, ceased, by its own act, to be a govern- 



8 The Republic as 

ment of consent, as in two famous charters, and in the 
constitution which created it, it had been, with exul- 
tation, proclaimed to be, and, under the control of 
Abraham Lincoln and the Republican party, became a 
government of force, according to the American classi- 
fication, as much as the sternest military monarchy in 
king-governed Asia. 

Political liberty, once the heritage of the humblest 
citizen, and of the smallest commonwealth, became 
henceforth, in that expanding circle of freedom, a 
permitted privilege. But such was not the language 
of 1776, when the new code of political rights was 
conceived and published amid the thunders of a revo- 
lution. Here are the words of a charter, venerable for 
its age and respectable for its authority, and the first 
in the order of time : " The right of a majority of the 
community to reform, alter, or abolish government 
is indisputable, indefeasible, and inalienable. ,, 1 This 
glorious truth, as it was asserted to be by the men 
who promulgated it, which was to have increased the 
dignity and secured the rights of human nature, then 
became a fiction of law, a thing of no substance or 
profit. Sophists have sought to nullify the import of 
that maxim of politics by confining its application to 
the Federal community, and thus would relegate the 
states, the parties to the Union, to the obscure and 
unhonoured condition of counties, having no indepen- 
dent life-principle. 2 But what says John Adams of 
Massachusetts, who laid the first stone of indepen- 
dence, as to the springs of sovereignty in the American 
confederated system of government ? Are they found 

1 Swift, with his accustomed energy of expression, had an- 
nounced, in 1724, the substance of that familiar principle. 
" Government," he said, " without the consent of the governed, 
is the very definition of tyranny" (Swift's " Letters of a Dublin 
Tradesman") — a truth which vibrates in every heart. 

2 Such was Mr. Lincoln's constitutional theory, according to 
his speeches as reported in the newspapers. 



a forin of Government. g 

among the State or the Federal powers ? He says : 
m Thirtee mine tits thus founded on the natural 

authority of the people alone, without tlie pretense of 
miracle or mystery, are a great point gained in favour 
of the rights of mankind." When American history 
is summoned from its seclusion and interrogated be- 
fore the judgment-seat, such, too, is not her testimony. 
She sustains to the full the evidence of Mr. Adams. 
The proper meaning, moreover, of that language is 
known by the party who used it, and the occasion on 
which it was employed. 

This thing was not done in a corner. The colony 
of Virginia, an empire in the gristle, self-sustained and 
heroic even in her error, had seceded from the British 
association of states, the model on which the American 
association was formed, as Madison distinctly tells 
us, whilst every other state remained a colony, bound 
in allegiance to the throne of King George III. This 
British province, which had been the beneficiary of 
every largesse and indulgence of the Crown speaking 
by a revolutionary junto which had seized the reins 
of government, declared itself to be a sovereign state 
from the colonial capital at Williamsburg out to her 
far-stretch mg and savage borders, formed an inde- 
pendent republic, and prefixed to its written consti- 
tution a Bi.l of Rights, from which the quoted language 
is extracted, which justified that revolution in govern- 
ment on the ground of a natural and inalienable right 
existing in the colony of Virginia, and all other 
political bodies, so to act. This right of political 
revolution, the indispensable condition of the sovereign 
right of self-government by the people, is then an 
organic principle of American freedom, as understood 
and maintained by Virginia in 1776, — the first to 
announce and the first to act upon that new political 
philosophy. It was in Virginia, then, that secession, 
as a political right, was first asserted. Countenanced, 
strengthened, and inspired by that example, the Con- 



io The Republic as 

tinental Congress accepted and ratified that primary 
principle of state rights, and published it to the 
nations, as the foundation on which their new nation- 
ality was reared — the right of secession. 

The record lies open before me. It will last until 
the rocks disintegrate, and the hills become valleys, 
and stand as a testimony against the employment of 
the Federal sword of coercion. The Declaration of 
Independence was promulgated July 4, 1776, con- 
firming, enforcing, and enlarging the truths previously 
announced and acted upon by Virginia. That cele- 
brated charter of popular rights declares : " We hold 
these truths to be self-evident, that all men are created 
equal ; that they are endowed by their Creator with 
certain inalienable rights, that among these are life, 
liberty, and the pursuit of happiness. That, to secure 
these rights, governments are instituted among men, 
deriving their just powers from the consent of the 
governed ; that, when any government becomes 
destructive of these ends, it is the right of the people 
to alter or abolish it, and institute a new government, 
laying its foundation in such principles, and organizing 
its powers in such form, as to them shall seem most 
likely to effect their safety and happiness." 

Thus, inherent political liberty is derived by the 
founders of the American Republic from inherent 
personal liberty, for natural liberty they thought of no 
value unless it followed the individual into a state of 
society. Outside of society it was only the liberty of 
the wild beast. That, in speculation, was the origin to 
which they traced the right of self-government in 
society. Not until the individual entered the social 
state, and his natural liberty was acknowledged and 
protected by law, did it become a possession of value. 
When Virginia accepted the first Federal constitution, 
and later, the second Federal constitution, both acts 
were done by her with her Bill of Rights in her right 
hand, construing, defining, limiting them. Nor did she 



a form of Government. 1 1 

imagine that she surrendered her own liberty of action 
by entering, voluntarily, a liberty system with the 
other states, founded on the same natural base of 
freedom with that on which her own was made to 
stand. That was a superaddition left to Abraham 
Lincoln and the Republican party. When, in 1861, 
moved by her sovereign pleasure, but acting in accor- 
dance with her old principles and traditions, she threw 
off a grievous Federal yoke, she found an Ameri- 
can President, whose power was but the rank and 
unhealthy growth of those principles, as prompt to 
stifle them with force as King George had been, who 
denied the school of politics out of which they sprang, 
nor in petition, nor remonstrance, had ever heard 
of those extravagant pretensions of his American 
subjects. 

Mr. Lincoln, by his armed powers, produced far 
greater results than the loss of independence by the 
Southern States ; for he destroyed the head-spring 
from which had been derived the right, which the 
majority claimed, to govern the state — a matrix which 
had fed and sustained all the liberty systems in the 
Western world. For whence came to the majority that 
inbred and indefeasible prerogative ? Not assuredly 
from the superior knowledge or wisdom of the 
majority; nor from their superior strength or wealth. 
There is no such presumption in reason ! Indeed, 
inquiry might show that each of these titles to govern 
resided with the minority — superior wisdom, superior 
knowledge, superior wealth, superior strength. It is 
evident the only authority for that theorem of politics 
was the assertions of those charters of popular rights 
which the late General Grant overthrew with his 
myrmidons. If, at this day, the majority governs 
anywhere, within the extended limits of political 
society, it is by the reverence which men pay to 
positive law. The moral ground has been broken up 
and swept away. Change the law and the right is 



1 2 The Republic as 

changed with the law. The party of " moral ideas/' 
as the Republican party arrogantly and insolently call 
themselves, has remitted society, in every land, to the 
government of force, and we stand now, in this 
advanced era, where Caesar and Genseric stood. The 
gay and novel theories of Jefferson of Monticello, and 
of Mason of Gunston Hall, upon which empires have 
been founded in the Occident, have flitted into air, they 
have dispersed with the light vapours of the morning. 
The idolized chief of a Republic stabbed liberty to the 
heart, and the august victim expired on altars raised 
to her own deification. Under the inauspicious reign 
of the Republican party, a revolution, silent, powerful, 
inevitable, occurred in the Federal States — a revolution 
of opinion, a revolution of ideas and principles. The 
maxims of the conscript fathers are dead. Sword-law 
usurped the throne of the constitution, and with confis- 
cation and murder as its banner, became the founda- 
tion ofa new order in the Union. This then, cast forth 
from the flaming crater of war, is one result in the ex- 
periment in free government which its partisans in 
other countries would do well to consider before they 
upheave the social fabric at home to rebuild it on that 
new treacherous base. Let them awake from dream 
and illusion. It were wiser to be instructed by the 
calamities of their neighbours, than by their own bitter 
misfortunes. The deity of the Republic, — its presiding 
and informing spirit, — is no longer the bountiful and 
amiable god of consent, whose altars and temples, 
once crowned with free-will offerings, have been dis- 
honoured and thrown down by a Federal soldiery. 

Aforetime, a class of speculative reasoners, whose 
habitat was Virginia, sought to establish a distinction 
between the right of revolution, which they did not 
deny, and the right of secession, which they did deny. 
This was before constitutional problems were decided 
by the edge of the sword ; it was previous to the era 
of Abraham Lincoln and the Republican party. It 



a farm of Government* 1 3 

the epoch of the dreamer and the theorist.! The 
distinction sought to be drawn by those metaphysicians, 
was ideal ; secession, in truth, being but revolution 
applied to associated communities. It is a particular 
kind of revolution. Those who obeyed the ferula of 
Calhoun, and the disciples of Webster, differed on the 
right of secession, as they differed in all other political 
things. The former extracted the right from a peculiar 
source. They held that the powers of the Federal 
Government, because delegated and enumerated, were 
trust powers, and might be resumed in virtue of an 
indestructible sovereignty remaining in the states 
among the mass of ungranted powers. But it was an 
obvious objection to that doctrine that it made the 
right to spring from the retention, by each state, of 
the sovereign principle. The other school denied this 
reserved sovereignty, contending that the sovereign 
right had passed to the Government of the Union 
by virtue of a ratification of the Constitution of 1787, 
by the people in their conventions, leaving in the 
states no greater independent political life than was 
to be found in the city government of Boston or 
Richmond. The fathers were better logicians, or, at 
least, they constructed a more consistent theory, when 
they asserted that the right of secession by an existing 
body politic was in virtue of an inherent and inalien- 
able right, whether the seceding community claimed 
to be sovereign or not. But, by whatever name called, 
or by whatever school advocated or taught, the 
doctrine was but a phantom, a cobweb of the brain ; a 
delusion and snare, and of no more practical utility 
than the controversies of the schoolmen, as Virginia, 
the old seceder, and South Carolina, the whilom 
nullifier, discovered, as soon as they attempted to 
employ the asserted right. 

The resort to compulsion, to preserve a federal 
body, was defended on the ground that, by the ratifi- 
cation of the constitution, the states surrendered the 



14 The Republic as 

right to withdraw from the Union. That had been 
Webster's inherited creed, and, in the field of argument, 
was the position held by the coercion party of the 
North and a handful of obsequious followers in the 
South. But that conclusion, with any show of truth, 
could not be derived from an adoption of the consti- 
tution, unless some prohibition of secession was con- 
tained in that instrument, such as there had been in 
the former constitution of the United States ; or 
unless, as a result of ratification, a fusion of the states 
into one social body had been produced. Neither 
proposition had the slightest colour of truth as a fact, 
and therefore the natural, and, as Virginia asserted, 
" inalienable," right of secession from a federal asso- 
ciation continued unimpaired, whenever, in the opinion 
of any state, the federation ceased to afford the ad- 
vantages for which it was formed or entered. It is a 
fact, undisputed at the North, or anywhere, that each 
5tate retained its autonomy more fully after the 
second constitution had been accepted, than when, as 
a British colony, it had withdrawn from the Empire, 
and there is no word, no clause, no just inference, to 
be derived from that authority of government by 
which the right of renunciation of its federal connec- 
tions by a state is surrendered, barred, or limited 
A voluntary secession from a federal body is the 
correlative of a voluntary accession to it, unless the 
privilege is surrendered, and even then the Virginia 
Bill of Rights, sustained by the Declaration of Inde- 
pendence, affirms that it cannot be lost, because it 
is inalienable. It is a right which springs from and 
attaches to that system of government. The history 
of the period that gave birth to the constitution, in 
language too emphatic to be misunderstood, informs 
us that, if an interdict of secession had been intro- 
duced into the constitution, so great was the difficulty 
of getting it accepted by the necessary complement 
of states on any terms, no one of them would have 



• 



a form of Government. 1 5 

embarked in that second experiment, would have 
entered into those dark, tortuous, treacherous Federal 
toils, so grounded were the people of every state in 
the principles of the revolution, then fresh and verdant 
in every mind and heart. 

The history of the United States informs everyone 
that the constitution of 1787 was not the first consti- 
tution of the Union, there having been, among the 
states, a previous federal bond. The intelligent and 
acute reader, attaching a just value to precedent, as a 
measure or test of right, at once inquires, On what 
terms were the states disengaged from the Union, which 
the first constitution formed, to enable them to con- 
struct another Union ? The question is pertinent to 
the inquiry, indeed it cuts into its very core. The 
fathers, who made the second constitution, and who 
had seceded from the British Union, have spoken 
and acted on the question, and their words and acts 
are decisive of the right of secession, as a constitu- 
tional franchise. The constitution of the first federa- 
tion declared the Union, which it negotiated, to be 
perpetual among those sovereign states, and that no 
part of that organic law should be changed without 
the concurrence of every state. The thirteenth article 
speaks in these words : " The articles of this confedera- 
tion shall be inviolably observed by every state, and 
the Union shall be perpetual ; nor shall any alteration 

n any time hereafter be made in any of them unless 
such alteration be agreed to by a congress of the 
United States, and be afterwards confirmed by the 
legislatures of every state." It would be inferred 
from this obligatory language that here was inter- 
posed an impassable barrier to the secession of any 
state, except by agreement of parties. But the 
fathers, with General Washington at their head, 
adopted a course effectual, and final, to disembarrass 
the states from that inconvenient covenant, and in 

ntire conformity with the nature of federal bodies as 






1 6 The Republic as 

understood and practised in America. Disdaining a 
limitation, sought to be imposed on an inalienable 
and indefeasible right, the states, one after another, 
withdrew from the old Union to enter a new Union, 
which another constitution proposed to form. 

With the example of 1776 before him, no American 
ought to ask by what authority that act was done, 
for it was done in virtue of a right superior to that 
constitution and to all federal constitutions — the right 
of secession inherent in every body politic, and in- 
distructible. Standing before us, then, we have the 
authority of the fathers for it, — their second exercise, 
as we see, of the right of secession. The argument is 
rendered more imperative and conclusive by the 
sanction which the second Federal constitution, in 
words, gives to the right of secession. The seventh 
and final article of that celebrated instrument provides 
for its own adoption through a series of secessions, 
and thus recognizes secession as the vitalizing power 
of the second and more perfect Union, as it had been 
of the first Union. The seventh article is in these 
emphatic words : " The ratification of the conventions 
of nine states shall be sufficient for the establishment 
of this constitution between the states so ratifying 
the same." This was not a desertion by consent 
of a rotten ship on the high seas — an abandonment 
to the winds and waves of an unseaworthy craft — 
for there were thirteen states in the Union which 
makes an adoption of another government, by nine 
states, secession from an existing and continuing 
federal body politic, whose constitution forbade the 
act. 

We find, therefore, that the right of secession is a 
birth-mark graven on the constitution by the creating 
power, graven on that constitution under which Mr. 
Lincoln levied war on the states of the South section 
because of their secession from the Union. Each 
state of the confederation, exercising an inherent and 



a form of Government. i 7 

inalienable right, according to the American doctrine 
of liberty, and actuated by its own determinate will, 
dropped out of an old Union and adhered to a new 
Union, acceding and seceding by the same act. 
Rhode Island and North Carolina stood by the old 
constitution, with its prohibitory thirteenth article, 
protesting against the infidelity of the other states to 
their Federal engagement. But remonstrance was 
treated with contemptuous silence, and Virginia, the 
ninth state, as was supposed, under the leadership of 
her governor, stimulated and abetted by the perplexed 
and double politics of James Madison, and secretly 
but effectively encouraged by Washington, retreated 
from the Union, and formed, with other seceding 
states, a new Federal compact, as, at a later period, 
she did with the other commonwealths of the South, 
but with far different results. The acts were similar, 
the right the same. The parties also were the same, 
except that the great West, the land of the buffalo 
and the elk, a savage realm, had become the abode of 
civilization, and, divided into states, had been admitted 
into the Union, as also had been the states of the 
cotton zone, redeemed also from the wilderness and 
the Indian savage. The first secession, sanctioned 
by opinion and sustained by physical power, was 
prosperous in the event, and the muses of history and 
poetry have united their songs to celebrate it as the 
grandest epoch in constitutional government. The 
later secession of 1861, not so sustained and sanc- 
tioned, met with another fate. It was stigmatized as 
rebellion against the constitution, with its indelible 
birth-mark upon it, by North section, which seized 
the common government, with its treasures, its public 
credit,, its army, its navy, its prestige, and its foreign 
connections. The seceding states, become the Con- 
federate States, a blazing meteor of fire, were visited 
with all the horrors of war. After they had been 
invaded and conquered, as only Attila invaded and 

C 



, 



1 8 The Republic as 

conquered, those once sovereign states, by force of a 
Federal edict, were reduced to military districts, be- 
ginning with Virginia as District No. I, with military 
satraps set over them, in imitation of Cromwell's 
Major-Generals, among whom, for the purposes of 
government, had been distributed the soil of subju- 
gated England, the significant result of that common 
wealth. That was a cruel mockery, by his Federal 
countrymen, of a hero of two secessions then sleeping 
so gloriously at Mount Vernon, still the resort of the 
pilgrims of liberty, who come with staff and sandal 
shoon. It is then a truth in American history, that 
the constitution, under which Lincoln coerced the 
South, did not prohibit secession by implication, or 
word, but in express language recognized it, and to it 
owed life as much as the cold and inert Adam owed 
life to the breath of the Deity. 

If we claim for the right of secession the authority of 
the Declaration of Independence, which asserts "con- 
sent " to be the only legitimate beginning of govern- 
ment, it will occur to the inquisitive reader to inquire 
whether the word, as used by the Fathers, implies 
consent in the outset of government, or requires it to 
accompany the government through all its stages and 
progressions, authorizing and sustaining it as a life 
force. If we look at the purpose of the principle, it 
appears that the two kinds of consent are but parts of 
the same asserted proposition. The sense in which 
words ought to be received is that which attached to 
them when they were used in the particular cases. 
What application was made of the language by the 
men who formulated the maxim of government ? We 
know that it was for the want of the continuing con- 
sent of the colonies of the British kingdom that the 
imperial authority was attacked. The legality of its 
origin was undisputed. Outside of New England, 
prior to the passage of the Stamp Act, the beginning 
of those evil days, the American colonies — it was es- 



I 



a form of Government. 1 9 

pecially true of Virginia l — had been distinguished for 
enthusiastic attachment to the British throne. But, 
on account of injurious legislation, as it was asserted, 
the consent of the colonial population had been with- 
drawn from the political connection. This was the 
sense — a withdrawn consent — in which the word in the 
United States was first used. Therefore bonds with 
the Empire were severed, and other bonds, with their 
consent, were contracted among the states, first in 
1776, and again in 1787. Here we have the word em- 
ployed in both senses by the actors who introduced it 
in the vocabulary of politics. The United States over- 
arch a continent. That imposing edifice of political 
authority, until the war of the sections, reposed on the 
recognized principal of " consent." A restored Union 
put the government on the new bottom of successful 
war. We attain then this result and definition of 
American liberty after the centennial era has passed : 
self-government in America is the government of the 
South, against its consent, by the North, under the 
penalty of fire and sword. That now is American 
liberty. There is a fact in the history of Federalism 
which greatly strengthens the argument in favour of 
the right of secession, which, in justice to historic truth, 
ought not to be omitted on this page. By the eighth 
article of the constitution of the Confederation, all 
Federal expenses are directed to be defrayed out of a 
treasury to be supplied by contributions from the 
states, according to a proportion which the article 
furnishes. The states were dilatory in obeying this 
injunction. New Hampshire, a rib taken from the 
side of Massachusetts, never paid anything. During 
~he entire period of the Confederation that statewas but 
in ornamental and honorary member of the society 
:>f states. No amount of dunning and begging could 
nduce the states to contribute their quotas of revenue 

1 See Edmund Randolph's speeches in the Virginia Conven- 
ion of 1788. 



20 The Republic as 

with regularity and fulness, and the financial credit of 
the Union reached the lowest stage of depression. 
There could not have been a more unhappy condition 
for a collection of American politicians — no money 
and no credit ! Whilst things were in this distressful 
state, Hamilton and Madison, prolific in schemes of 
reform, but, in that case, speaking for others as well 
as for themselves, submitted to Congress a plan which, 
if it was adopted into the constitution, would empower 
that body to issue, against the trade of a state, letters 
of marque for the arrearages of its Federal taxes. 
From the spoils of commerce the deficiency of taxa- 
tion was to be made good. But the medicine was 
thought to be too potent for the constitution of the 
patient, so the poisonous insect never took wing. 
Congress was persuaded that the scheme provided for 
a civil war, which, if successful, would destroy a govern- 
ment of consent. The fathers then, moving on the 
line of the Federal principle, and sticking to that plane, 
thus acted : coercion they would not allow ; secession 
they would not forbid. 

This by no means discloses the strength of the com- 
bination which had been formed to arm the central 
government with this proposed power, so fatal to the 
system as a voluntary government. It is by far the 
most interesting feature in the political history of the 
United States, and will be recorded here. Nowhere 
else, in our time, or until it has become a dead historical 
fact, will it find expression on the page of American 
history. Since the war of coercion, begun by the 
Republican party in k i86i, Northern writers, to conceal 
the wicked and unconstitutional nature of coercion, 
with carnage and conflagration in its train, are ac- 
complices in the suppression of the truth in relation to 
it, whilst Southern biographers are so partial to the 
heroes they applaud that they effect the same object. 
But this writer has no section or party to shield, and 
no hero to extol. The first movement was made in 



a form of Government. 2 1 

the legislature of Virginia by the partisans of that 
excessive Federal jurisdiction, but it received no en- 
couragement in that fortress and asylum of states 
rights. 1 We hear of it next in an unsigned and un- 
dated letter, in the handwriting of Joseph Jones of 
Virginia, addressed to Pendleton, Wythe, and Jeffer- 
son, and found among the papers of Jones, addressed 
to him by Madison, and by him endorsed " probably 
written by General Washington " (Madison Papers). 
If we judge the authorship by the contents of the 
paper, there can be little doubt that Madison's con- 
jecture was correct. It appears to have been written 
immediately after the Confederation was adopted by 
Maryland, the final state, and attempts by argument 
to prove that the right of the Congress of the Con- 
federation to coerce a state into compliance with its 
Federal obligations, was to be found among the con- 
structive powers of the government. But at that early 
date, before Northern opinion had been moulded in a 
suitable form, those partisans of coercion dared not go 
so far, that achievement in sword-logic being left to 
the president of a Republican party, with its moral 
ideas, coming a century later. 

The compulsion party had increased in the army, 
where Washington's influence was greatest, and the 
necessity severest felt, and also in the Federal nation ; 
for, as we have seen, it reared its formidable crest in 
Congress in the spring of 178 1. The proposition of 
Hamilton and Madison was referred to a special com- 
mittee, which reported favourably, and went to the 
extent of extending the power asked for, and em- 
bracing in their report the form of the constitutional 
amendment which they recommended for adoption by 
Congress and the states. I copy it, as found in the 
report of the committee, to serve as a verification of 

1 It is remarkable that Jefferson should have advocated that 
amendment. (Lee's " Remarks on Jefferson.") But Jefferson was 
a politician. 






22 The Republic as 

the fact, as well as an expression of the terms in which 
its partisans proposed to the states to make that enor- 
mous concession of power to Congress — to make a sur- 
render of all states rights in a single act. The reader 
will then know that the power to use force against a 
state by a Federal Congress was solicited/but was per- 
emptorily and finally refused by the Congress of the 
Confederation as destructive of a union of consenting 
states. We will also learn that the proposition was 
renewed in the convention which framed the constitu- 
tion from which President Lincoln derived his sword- 
law, and that the power was again peremptorily, and 
finally, but not effectively, refused. The report of the 
committee to whom Hamilton's proposition was re- 
ferred speaks in this language : " Whereas, it is further 
declared, by the thirteenth article of the Confederation, 
that no addition shall be made to the articles thereof, 
unless the same shall be agreed to in a Congress of the 
United States, and be afterwards confirmed by the 
legislatures of every state : the United States in Con- 
gress assembled, having seriously and maturely de- 
liberated on these considerations, and being desirous, as 
far as possible, to cement and invigorate the Federal 
union, that it may be established on the most immuta- 
ble basis, and be the more effectual for securing the 
immediate object of it, do hereby agree and recom- 
mend to the legislatures of every state to confirm and 
to authorize their delegates in Congress to subscribe 
the following clause as an additional article to the 
thirteen articles of confederation and perpetual union. 
' It is understood and hereby declared, that in case 
any one or more of the Confederated States shall re- 
fuse or neglect to abide by the determinations of the 
United States in Congress assembled, and to observe 
all the Articles of Confederation as required by the 
thirteenth article, the said United States in Congress 
assembled are fully authorized to employ the force of 
the United States, as well by sea as by land, to com- 



a form of Government. 2 3 

pel such state or states to fulfil their Federal engage- 
ments ; and particularly to make distraint on any of 
the effects, vessels, and merchandises of said state or 
states, or any of the citizens thereof, as with any 
foreign state, as well by land as by sea, until full com- 
pensation or compliance be obtained with respect to 
all requisitions made by the United States in Congress 
assembled, in pursuance of the Articles of Confedera- 
tion. And it is further understood, and is hereby 
agreed, that this article shall be binding on all the 
states not actually in possession of the enemy, as soon 
as the same shall be acceded to and duly ratified by 
each state.' " 

In the history of the proposition for coercion we come 
to the convention of 1787, and find there an act of that 
body which clinches the conclusion that the framers 
of the American Federal plan designed to give to the 
Federal government no compulsory power over a 
state. As soon as rules for the government of the 
convention were adopted, as we learn from the Madi- 
son Debates, Governor Edmund Randolph of Virginia 
opened the main business : " He expresses his regret 
that it should fall to him rather than to those of longer 
standing in life, and political experience, to open the 
great subject of their mission. But the convention 
had originated in Virginia, and his colleagues sup- 
posed that some proposition was expected from them, 
and had imposed that task upon him. He then com- 
mented upon the difficulty of the crisis and the diffi- 
culty of preventing the fulfilment of the prophecy of 
American downfall." He then proceeded to submit 
a plan for a Federal government which he had pre- 
pared as a substitute for the Articles of Confederation. 
It was accepted as a proposition on which to begin 
work, and the convention referred it to a committee 
of the whole house, where it was considered. The 
present body of the constitution is Governor Ran- 
dolph's proposition, but altered so as to accommodate 



•24 The Republic as 

the opinions of the convention. If any one deserves 
the appellation of father of the constitution, he is 
Edmund Randolph. The last clause of the sixth 
article of his proposed government was in these signi- 
ficant words : " That the national legislature ought to 
be empowered to call forth the force of the Union on 
a state failing to fulfil its duty under the articles 
thereof." In comprehensive brevity the language 
authorized force to be used on the states, and des- 
troyed the voluntary feature of the Union. It was 
rejected from the Federal plan by the convention, 
sitting in committee of the whole, and we hear no 
more of coercion in its proceedings. No man spoke 
for it ; no man voted for it ; though Hamilton, the 
coercionist, was on the floor, and Washington, the 
coercionist, was in the chair as president, but voting 
as a member. It appeared, too, that the ductile 
Madison also had seen a new light since he proposed 
to equip a Federal fleet and send a Federal army to 
collect taxes from a laggard state, and since his letter 
to Jefferson of April 16th, 1781, enclosing the com- 
mittee's report to Congress, recommending that mea- 
sure as an additional power to be conferred on the 
Federal government. He opposed Randolph's pro- 
posal with this conclusive argument : " The more he 
reflected on the use of force the more he doubted the 
practicability, the justice, and the efficacy of it, when 
applied to the people collectively and not individually. 
A union of the states containing such an ingredient 
seemed to provide for its own destruction. The use 
of force against the state would look more like a 
declaration of war than an infliction of punishment, 
and would probably be considered by the party 
attacked as a dissolution of all previous contracts by 
which it might be bound." 

Upon scrutinizing its provisions we discover in the 
constitution no authority for Congress, or the president, 
to levy war on a state, because the convention, upon 



a form of Government. 2 5 

maturest consideration, refused to confer upon either 
or both that dangerous power. To render the refusal 
more significant, and more obligatory, the constitution 
contains this further provision, put there to guard the 
states from the perilous constructive power in this as 
well as in other cases : " The powers not delegated to 
the United States by the constitution, nor prohibited 
by it to the states, are reserved to the states respec- 
tively or to the people." 

It having been shown that those statesmen refused 
to place the right to coerce a state among the granted 
powers of the constitution, it cannot be contended, 
with any show of reason, that it was the intention to 
leave it among the incidental, or constructive, powers 
of the system. The clause just cited from the consti- 
tution, as well as the reason of every man, rejects such 
a conclusion as absurd. But there is a fact that settles 
the argument, against such a construction of the con- 
stitution, derived from the committee's report to the 
Congress of the Federation before alluded to. When 
the committee submitted its report, it contained in the 
preamble an argument that the solicited power already 
existed among the implied functions of the govern- 
ment. We ask why the committee, if thus persuaded, 
did not recommend to the Congress to employ that 
latent authority ? Why, then, press the amendment 
on Congress and the states ? The committee did not 
stand alone in the opinion that a power of compelling 
a state existed among the implied powers of the 
Confederation. We know that Washington was of 
that opinion, as well as Hamilton, Madison, and other 
great men of the country. Nevertheless, all united 
in the effort to have the constitution amended by the 
insertion in it of a positive grant of the power. The 
reason, which was given in the committee's report, 
condemns President Lincoln and the Republican party, 
who derived the power of compulsion from the implied 
powers, in the most distinct and vehement manner. 



26 The Repttblic as 

The preamble says: "It is most consonant to the spirit 
of a free constitution that, on one hand, all exercise of 
power should be explicitly and precisely warranted ; 
and, on the other, that penal consequences of a viola- 
tion of duty should be clearly promulged and under- 
stood." That obviously is the correct theory of written 
governments ; and, when a power so capital in its 
nature- is not to be found among such as are expressly 
granted, it is a necessary conclusion that it was regarded 
as one of so dangerous a character as not safely to be 
trusted to the government of the Union. It is an 
abuse of reason and logic to derive by inference, from a 
written constitution, a power which the convention 
which formed it refused to confer upon the govern- 
ment. Notwithstanding all these barriers, and even 
an interdict by an oppressed and voiceless constitution, 
President Lincoln, in a war of coercion, ravaged, in 
the South section of the Union, an immense area of 
civilization, population, and wealth, and by his 
executive decree emancipated the entire serf popu- 
lation. That act he justified, not by the constitution, 
but by the illimitable war power. Constitutional 
government may be defined as one in which the 
balanced forces of the constitution direct the action 
of the government. Judged by the terms of this 
definition, the Republic of the United States does not 
belong to the class of constitutional governments, but 
to that other description in which government is 
dominated by an arbitrary will, backed by an irre- 
sistible force. Methinks I hear the man of affairs in 
Europe, who values government for its practical 
advantages, inquire : " What then is the worth of the 
written constitution, stuck over with oaths, the cha- 
racteristic of the modern republic ? " The experi- 
ence of America sadly answers : " Nothing ! As a 
security for right, or a shield against wrong, it is 
utterly valueless. It is a fiddle on which the poli- 
tician plays any tune ; it is a cobweb which confines 



a form of Government. 2 7 

only the weak ; it is a quicksand which finally engulfs 
a nation." 

We will now contemplate the right of secession in 
a more amiable light, as a force to preserve, by its 
presence and silent influence, a written constitution. 
In that primordial right there was a deep philosophy, 
as the American fathers employed and understood it. 
More assuredly than all the checks and covenants of 
a constitution, contained in books and expounded by 
courts, would the acknowledged liberty of secession 
engender moderation in the exercise of power. That 
natural prerogative of states, when they are joined in 
a federal body, would forge links of gold between them. 
The Union would be a consenting system based on 
mutual advantage. Such a sovereign discretion would 
operate like gravitation in the universe of matter, and 
would draw all hearts together. Under the sway of 
that sceptre Congress, and the other departments of 
the government taking their hue from Congress, would 
become a government of the concurrent majority, — 
the only form of the majority power that does not 
militate against a government of consent. Under that 
mild sway the enactment, the execution, and the judg- 
ment of laws become subjects of compromise, and 
compromise is consent. Some philosophers have sup- 
posed electricity to be the power which fixes the 
sideral universe, and binds the planets in their courses ; 
and the unfettered right of secession was a political 
electricity which the fathers of the Republic introduced 
into it to give the Union anchor, and harmonize the 
action of the Federal planets. That was the god, the 
beneficent power, which they left to watch over the 
constitution, and be always with it. But the Repub- 
lican party, the patron of sectionalism and violence, 
not comprehending the purpose of a confederation of 
states, or despising the principle which it represented, 
with vandal hands destroyed it. Not till then did the 
genius of the constitution take its flight ; not till then 



28 The Republic as 

did liberty, with downcast visage and weeping eyes, 
bid adieu to America. 

With deference to the name of Webster, but with 
an assured confidence, it is asserted here that the 
principle of a Union of consenting states was not 
understood by that greatest statesman and orator of 
the North, at least, was not announced by him from 
his place in the senate or in any publication known 
to me. The great deputy of a mercenary and agres- 
sive majority was in a false position throughout his 
extended and glorious career in Congress. This 
explanation is due to his memory. His people used 
the strength of the giant that they might receive the 
pecuniary results of his labour, as though he had 
delved for the all-worshiped ore. But there was a 
higher purpose to which the genius of Daniel Webster 
should have been applied to discover and develop the 
unwritten philosophy of the Federal system, designed 
for the protection of minorities, on which its grandeur 
and permanence depended. He should have been the 
colleague, not the opponent, of Calhoun ; but nature, 
averse from prodigies, would not be thus prodigal of 
her gifts to South Carolina. When Daniel Webster 
left the roof-tree of his Puritan ancestors, amid the 
hills of New Hampshire, to seek his fortune in the 
great world beyond, he hesitated whether he would 
not make Virginia his home, as Prentiss afterwards 
was drawn to the banks of the Mississippi. Virginia 
would have employed her adopted son, not as Massa- 
chusetts used him, in devising and defending systems 
of plunder legislation, to be forced on unprotected 
minorities, but, without doubt, in developing the 
fundamental idea of a system of confederated states, 
giving him an indefeasible title to the coveted name 
of " expounder of the constitution." As senator from 
Virginia he would have educated the nation in the 
opinion that secession was a salutary principle in a 
voluntary community like the American Union. The 



a form of Government. 29 

South might have been compelled to retire from the 
Union, but a tribunitian power as a guarantee would 
have been inserted in the constitution, and the story 
of old Rome been repeated in the distant West. The 
error of Calhoun's constitutional philosophy was, 
whilst he tortured nullification into a remedy for ex- 
orbitant uses of Federal power, he would not accept 
secession as a mode of redress, inherent in the nature 
of the Federal structure, efficacious, and justified by 
the precedents of the country. 

If the Federal Association had fulfilled the purpose 
avowed by its contrivers, of conferring on the states 
advantages to be enjoyed in no other way, it would 
have been wiser than an interdict of secession to have 
moved in a contrary direction, and provided for the 
expulsion of disobedient and troublesome states, like 
the Puritan commonwealths, in imitation of the policy 
of that early compact which held in defensive league 
the colonies of New England against the hostile 
Indian nations on their borders and the Dutch of 
New York. Rhode Island had not been allowed to 
unite with the pious sisterhood. Its inhabitants had 
held an erroneous tenet in religion with reference to 
the covenant of grace and the covenant of works. 
The dispute had arisen in Massachusetts. The heretics 
had been expelled from the congregation of orthodox 
believers, but, under the banner of Mrs. Hutchinson, 
had braved a savage wilderness and found religious 
freedom in an island of Narragansett Bay. The 
odium of the theological error clung to the seceders, 
and rendered them unworthy of political fellowship 
with the godly inhabitants of Massachusetts, New 
Hampshire, and Connecticut. 

Want of revenue produced the movement for Federal 
reform, which, gathering volume, resulted in the con- 
stitution of 1787. The Congress of the Confederation, 
encompassed by financial troubles, recommended to 
the states to amend the articles so as to empower the 



30 The Republic as 

government to collect a five per cent, ad valorem duty 
on the import trade. The thirteenth state withhold- 
ing its assent, the amendment failed of adoption. A 
dissolution of the Federal body was imminent, and 
Congress, by painful experience, realized the truth of 
Burke's aphorism, that " the revenue is the state." It 
had become obvious to certain of the leaders of 
opinion that if the constitution was to be strengthened 
by the addition of further powers, it would be neces- 
sary to devise some other mode of compassing that 
object than the concurrence of all the states in the 
mode directed by the Articles of Union. We have 
learned that, in that condition of perplexity, state 
secession, after a new constitution had been made, 
was recurred to as a mode speedy and effectual to 
compass that object. This event in American history 
very strikingly displays the fact, that, in certain con- 
junctions of necessity, secession is the only mode of 
preservation offered to a federal body, — a fact that 
ought to be impressed now on the American mind. 
In 1 86 1 a crisis again occured in the United States, 
as it might occur at any time when it was necessary 
to overhaul the ship of state, and make certain repairs 
in it, to avoid a disruption or overthrow of the Union. 
Under the mask of popular suffrage, which was called 
by the fine name of " liberty," the Federal government 
had become an oppressive despotism of sections, the 
product of an unskilful organism. Through all the 
organs of sensation the section of the South ex- 
perienced the insulting and injurious serfdom to 
which it had been reduced under a government which 
had been acceded to by their ancestors searching for 
the liberty of the Republic. 

The written constitution, having the seal of Wash- 
ington attached, with its covenants, its sanctions, and 
its guarantees, even from the day of its installation, 
had been made to accept any construction demanded 
by the love of dominion, greed, or fanaticsm of a 



a form of Government. 3 1 

sectional majority, residing in the North, which 
dominated in Congress, in the electoral college, and 
was felt in the decrees of the courts. It was an in- 
fluence that, like the upas tree, overshadowed the 
Union. The property of the Southern people, by the 
overt and visible agency of congressional enactments, 
taken from them in large masses and distributed 
among favoured industries in the West and North, 
whilst their labour system, warranted by the consti- 
tution, as constructed by the courts, 1 was openly 
threatened with destruction, although it was the 
corner-stone of Southern civilization, and was inter- 
woven, in every part, with the huge body of its in- 
dustry. Never in the history of mankind had been 
constructed so subtle, so gigantic, and so exhausting 
a tribute. It was as unmitigated a state of slavery/ 
as one community could create over another. They 
did not send a Verres to South Carolina to oppress 
and destroy the people, but they sent custom-house 
officers more exacting than Verres. The Federal 
soldier alone was wanting to complete the picture of 
servitude, and he was supplied amid the flames of 
Columbia. 

There was but one mode, in conformity with the 
constitution, by which the grievance could be redressed, 
and that was to introduce, as a provision in the con- 
stitution, an article which would place the means of 
self-protection in the hands of the oppressed and 
depleted minority. After wandering in the mists, 
discussing temporary or partial remedies, Southern 
opinion at last fully, strongly, and definitely occupied 
that ground. 

From that period " equality in the Union," which the 
South claimed as a right, meant equality of power, — 
right coupled with the means of enforcing or protecting 
it. After the nullification period closed, Honourable 

1 The Dred Scott decision. 



32 The Republic as 

John C. Calhoun, " worthy to be a senator of Rome 
when Rome survived,'' as Webster finely said of him, 
had been engaged in educating the intelligence of 
South section in that opinion. Nowhere has the reasor 
of the self-protecting principle in government been sc 
fully and so ably discussed as in the multiplied produc- 
tions of his great intellect. Disciples enlisted under 
the renowned master, and followed him into that field 
of discovery and thought, as scholars followed Plato 
the divine in the groves of Academe, or Aristotle in 
his walks by the Illissus, and among them this writer, 
who published, a year previous to the battle of Man- 
assas, a volume to prove that, according to the de- 
sign of the constitution, an " equilibrium of sections 1 
had been devised, but that it had been circumvented 
by the sinister action of Congress. It was the cherished 
hope of the discoverer of that constitutional theory, 
that such an organic change, as was implied by the 
restoration of that constitutional base, would commend 
itself to public favour in the Union, and that a restoration 
of " the Lost Principle" of the government would be 
accepted in lieu of a Southern Republic. 1 But speeches, 
even from a Calhoun, proved to be empty breath, 
and essays, pamphlets, books, from other sources, 
emptier still in producing in the dominating section 
an inclination toward justice and constitutional com- 
promise. The equilibrium would have been a deliverer 

1 The first fruits of the leisure of a planter's life was " the Lost 
Principle of the Federal government. " Examination of the 
Madisonian Debates had satisfied me that the states were not the 
substantial parties to the Union, but subordinate divisions of two 
sections, which had formed the compact of government, based on 
a projected balance of power. That was the theory which I had 
worked out of the constitution, as explained by the Debates of 
Madison. When I stated it to the Hon. Robert Eden Scott, who 
lived at Oakwood, the paternal home, an adjoining plantation, he 
attacked it with the combined forces of ridicule and argument, 
which induced me, nothing daunted by the criticism, to enlarge 
my second part to combat his objections. But when the volume 



a form of Government. 3 3 

South section, and the North section was in no 
mood to enfranchise the sweating giant and lose the 
monopoly of his labour. 

Without the consent of the controlling part of the 
Federal empire nothing could be effected in that 
direction, for the constitution provides that : u Congress, 
whenever two-thirds of both Houses shall deem it 
necessary, shall propose amendments to the consti- 
tution, or, on the application of the legislatures of two- 
thirds of the several states, shall call a convention for 
proposing amendments which shall be valid to all 
intents and purposes as parts of the constitution when 
ratified by the legislatures of three-fourths thereof, 
as one or the other mode of ratification may be 
proposed by Congress." This placed the redress of the 
grievance beyond the flight of hope. As well, for the 
purposes of the South, have left Federal amendment 
where the Confederation had placed it. This pre- 
caution appears to have been inserted in the instrument 
for the protection of the minority, but the Fathers did 
not remember that, with the unlimited pow r er of con- 
struction always at hand, the majority has no occasion 
to enlarge the powers of the constitution by new grants. 
But, whilst amendment was rendered thus difficult, 
the framers of the Federal polity in no w r ise forgot that 
they had left with an aggrieved state, or oppressed 
minority, the primordial and indefeasible right of 
secession, and that it was the ultimate ground on which 
that constitution stood with its unreasonable fifth 
article. 



which I had written was published, he read it twice very carefully 
and, with habitual candour, accepted the new doctrine as the 
correct theory of the general government. During four years, 
in solitude and in the shadow of a great mountain, I laboured at 
my idea, and his acceptance of it rewarded me for all my toil ; 
and I was gratified when he informed me that he had used it in 
his conference with Secretary Seward. So the pressure of an 
idea had converted a planter into an author. 

D 



34 The Reptiblic as 

The Southern leaders followed the example of their 
ancestors. They tried the mode of redress in 1861 
which in 1787-8 had succeeded so perfectly. The 
object of the secession movement was to procure an 
amended constitution. I know the fact. After the 
river of secession had been crossed, measures of 
compromise and reunion would have been proposed 
to the North by the seceding powers, but for its 
haughty and forbidding attitude. Rejected proposals 
would have led to demoralization in the Southern 
ranks, so the leaders in secession reasoned, and an 
independent government endangered the measure re- 
solved on by those leaders, if the constitution could not 
be amended, as better than an ignoble and exhausting 
bondage to the merchants, manufacturers, and shippers 
of the North, become a monied aristocracy, who by 
protective and prohibitory systems had made the 
continent a barred prison to South section. Every 
man who embarked in that adventure felt the real 
state of subjection into which every Southern common- 
wealth had been brought, and that the South section, 
appareled with freedom, was but as a victim conducted 
to the sacrifice, adorned with garlands, and accompanied 
with the music of timbrels and harps. 1 

1 See the later writings and speeches of Calhoun fiassint, but 
particularly his speeches in the Senate on the slavery question, 
March 4, 1850, and his reply the next day to Senator Foote of 
Mississippi, so undaunted a champion of the Union. In the 
former he said : " The North has acquired a decided ascendency 
over every department of this government, and through it a con- 
trol over all the powers of the system, A single section of the 
government, by the will of the numerical majority, has now in 
fact the control of the government and the entire powers of the 
system. What was once a constitutional Federal Republic, is now 
converted in reality into one as absolute as any autocrat, and as 
despotic in its tendency as any absolute government that ever 
existed in the latter. Could I have overlooked the cause, which 
is so obviously to be traced to the utter inability of the Southern 
States to defend themselves through Congress upon this or any 
other subject upon which the Northern States choose to act ? 




a form of Government. 3 5 



CHAPTER III. 

WILL now introduce into the domain of 
history an important fact which belongs 
to the subject and to the era of which I 
am writing, and to the acquaintance of 
the foreign reader a man whom great 
talents and integrity, with singular firmness and 
boldness of character, qualified for the highest em- 
ployments of state. A noble figure and a countenance 
filled with light, indicated the greatness of his mind 
and character. In 1861 Honourable RobertEden Scott 
was an eminent lawyer of Virginia, and an opulent 
slave-holder and extensive planter of Fauquier county. 
He had shunned Federal life, and, for many consecu- 
tive years had represented the voters of the county 
with distinguished reputation in the legislature of the 
State, and in 1850 had been one of two delegates 
to a convention charged with the responsible duty of 
amending the constitution of the State of Virginia. 
In politics, with a strong and an undeviating step, he 
had trode the path of Whigism, and had opposed with 
warmth the Democratic party in its endeavour to obtain 
a Federal control, because its tendency was, he was 
persuaded, to excess, latterly to the excess of disunion. 
When Secession stepped into the arena and sounded a 
blast on his trumpet, he supported the side of the 
Union with all his strength and with all the resources 
of his popularity and influence. 

Could that be overlooked ? It is the great, the manifest cause. . . . 
Does the senator think that the South can remain in the Union 
upon terms of equality without a specific guaranty that she shall 
enjoy her rights unmolested? . . . No, Mr. President, we cannot 
disguise the fact that this feeling in the North exists ; and unless 
there be a provision in the constitution to protect us against the 
consequences, the two sections of this Union will never live in 
harmony." — Works of Calhoun, vol. iv. pp. 551, 574. 



36 The Republic as 

In that period of anxiety and terror he spoke, 
memorably, in Warrenton, the county seat of Fau- 
quier, and depicted in colours, not too dark, what, in 
the event of a war between the sections, would be the 
wretched condition of Virginia, to be made a cockpit 
and the prey of a vile banditti, recruited for the Federal 
service from the outcast population of Northern cities 
— a speech which will not be forgotten by any man 
who heard it. Nevertheless, Mr. Scott had been brought 
to appreciate the condition to which the Southern Re- 
publics had been reduced by an unequal and fraudulent 
working of the colossal power with its head and fangs 
at Washington, but embracing the entire slave section 
in its dreadful coil ; yet he could not be persuaded 
that a Republic, reposing on the ground-work of slavery, 
would redress the evils complained of, and would not 
rather plunge the unhappy South in a vortex of irre- 
trievable ruin. Therefore, in the new division of 
parties which then occurred, he was a warm, a de- 
cided, a vehement advocate of the Union, and had 
been elected by a very large majority of the voters of 
Fauquier county to the Sovereign convention, to be 
charged, in that imminent crisis, with the interests of 
Virginia. His colleague in that great business was 
Honourable John Quincy Marr, a gentleman of ability 
and character, captain of the " Warrenton Rifles " in 
General Beauregard's army, a brave and accomplished 
officer, and the first soldier who was killed in the Civil 
War. Such was the attitude of affairs when there 
came to Mr. Scott at Oakwood, his country seat, a 
messenger, sent by the Premier of Mr. Lincoln's 
administration, to invite him to a consultation in re- 
spect to the public disorders. At once he repaired to 
the Federal city, hoping that something might be done 
to restore the Union in its integrity, or, at least, to 
preserve the public peace. Though the strong bias of 
Mr. Scott was towards conservatism in government, 
vet he recognized the fact that the Union had worked 



a form of Government. 3 7 

off its centre, and that a balance of political forces, 
between the angry sections, would have to be pro- 
duced as the condition of a permanent settlement of 
the questions which were then convulsing the country. 
Therefore, when invited by Secretary Seward to give 
his opinion as to the policy to be adopted by the 
administration of Mr. Lincoln to recall the detached 
states, he answered : 

u Justice, Mr. Seward, justice ! Do the South 
justice, and I will engage that every state will return 
to the Union." 

11 If justice," responded Mr. Seward, u be all that the 
South demands, she will assuredly receive that at our 
hands." 

Mr. Scott was a direct man ; he was a matter-of- 
fact man, and not at all given to the fence of words, so 
he replied to the Premier : 

"The kind and measure of justice which the South 
now asks from you is not such justice as is found in 
promises or paper guarantees. We demand a sub- 
stantial guarantee: an equal power with the Free Soil 
section in every department of the government — the 
legislature, the judiciary, the presidential office. The 
South must have an equal power in the Union as the 
condition of its restoration." 

This brought the conversation to an abrupt termi- 
nation, for the Secretary said, with emphasis : 

" That cannot be. The North will never consent to 
part with its supremacy in the Union." 

The conference between those gentlemen had not 
been productive of a compromise of views, but it had 
thrown on the sectional controversy a new and very 
strong light, and had convinced Mr. Scott that the 
North, notwithstanding sentimental professions, did 
not desire the Union except as a means of holding 
and governing a rich, dependent, and spoliated pro- 
vince. He was satisfied, too, that the claims of the 
South, if ever conceded, would have to be wrung from 



38 The Republic as 

the dominant section by a hand of greater strength 
than negotiation. With this impression or conviction 
on his mind, he repaired to the Sovereign convention 
at Richmond, where that subject was brought directly 
to his attention, as further on in this narrative we 
shall see. 

The Sovereign convention was in session in Rich- 
mond as this writer passed through that capital to 
Montgomery to take part in the movement for an 
independent South, if the Southern Confederacy, as 
then formed, should appear to possess sufficient 
strength of texture, but stopped long enough to 
ascertain the complexion of the convention. As soon 
as I reached the seat of the new government I sought 
out Honourable Barnwell Rhett, an accomplished 
statesman and leader in South section, who repre- 
sented South Carolina in the Confederate Congress, a 
polite correspondence having been held between us a 
year before that time. Mr. Rhett introduced me to 
President Davis, whose unshaken constancy and high- 
est courage, amid all reverses, the world knows so 
well. I saw him as a hero formed for high exploit, 
tranquil, intelligent, firm, handing to the young 
Bellona spear and shield, whilst history stood by with 
unwritten scroll and her pen of iron. The President 
inquired of me the news from Virginia, and sought 
particularly to know what I thought of the composi- 
tion of the convention. I told him I had attended 
its sittings long enough to give me a decided opinion 
upon that subject. "The convention," I said, " is 
composed of three distinct parties. There are the 
ultra Union men, a small fraction, who demand that 
secession be stopped and the seceded states forced 
back into the Union. As a balance, there is another 
ultra party, stronger in numbers, but unable to effect 
any result, which insists upon immediate secession and 
annexation to the Southern Union, as necessary to 
the interests, the safety, and the honour of Virginia. 



a form of Government. 39 

But there is another Union party in that body standing 

between those antagonists, which holds the majority 
firmly in its grasp. This intermediate party is sincerely 
attached to the Union as it was, yet is not deaf to the 
complaints of the states of the cotton belt. But if 
there be two Unions formed out of the states, one at 
the North and one at the South, and Virginia is com- 
pelled to choose between them, under the auspices 
and lead of this middle Union party, she will come 
South, if necessary, sword in hand. I know some of 
the leaders of that middle Union party in the con- 
vention, and I answer with my life and honour for 
their loyalty to the South," — words spoken without a 
design, but which I suspect bore fruit. 

General Joseph R. Anderson, proprietor of the 
Tredegar Iron Works at Richmond, and later a 
Brigadier-General of the Confederate Army, a post 
for which he had been prepared by a West Point 
education, I found in Montgomery. He had been 
drawn to that new centre by an engagement with the 
government, if it should appear to possess sufficient 
cohesion to be a contracting party, and we occupied 
the same apartment in the crowded hotel, having been 
acquainted before. We would consider and compare 
at night the observations which each had made during 
the day, and concluded that the government of Presi- 
dent Davis would stand. I cannot describe the influx 
of strangers into the new capital, except to say that 
all that was most beautiful, graceful, and engaging in 
those states was to be found there ; nor can I name the 
distinguished characters, military and civil, who had 
come to Montgomery to give the moral support, to be 
afforded by their presence, to that recent birth of seces- 
sion. With that pleasing and forcible argument before 
our eyes, no doubt could be felt that the Confederacy 
was established at least in the hearts of the people. 
The Secretary of War conferred on me a commission 
in the army of the Confederate States, then but an 



40 The Republic as 

ideal creation, but to become, as Thomas Carlyle 
might say, a considerable entity, though I had been 
strongly urged by Mr. Rhett to prefer the foreign 
service of the young Republic. There soon came to 
me from the Adjutant-General's office an order to 
report to the Secretary of State for duty. 

I found General Toombs in his office. The make 
of his face and his remarkable dark eyes indicated 
the force and brilliant character of his genius, so con- 
spicuous wherever he had acted. His name was 
associated with that of Alexander H. Stevens, the 
Confederate Vice-president, and subsequently the 
Governor of Georgia, and in that bright conjunction 
they have passed into history. There was about the 
Secretary a warmth and decision of manner as though 
he rarely hesitated. Addressing me he said : " Captain, 
we have service for you, but not in the military line. 
We wish you to go to Richmond and find means to 
disabuse the convention of the false impression which 
Union newspapers and talkers are making. They 
say there is no cohesion here ; that, at this moment, we 
are on the point of dissolution. That is not so. Look 
around you ! Tell them we have left the Union and 
do not intend to return to it. We wish you to start 
to-morrow." * 

An intelligence passed between the Secretary and 
myself, and I requested to be allowed to establish in 
Richmond a recruiting station for the army. The 
request was instantly granted though, regularly it 
ought to have been preferred to the Secretary of War. 

The next morning I left for Virginia. For a travel- 
ling companion I had General Ben McCullough, then 
famous in Western life, but afterwards more famous as 
a brave and skilful commander in the Trans-Mississippi 

1 General Robert Toombs and Honourable Robert Eden 
Scott had been fellow students at the University of Virginia, the 
nurse of secession. 



a form of Government. 41 

department of the Southern Republic. We parted at 
Lynchburg on the Upper James, and never met again, 
his mission taking him to Washington, mine calling 
me to Richmond. I opened a recruiting station on 
Bank Street, placed a Confederate flag at the door 
within a stone's throw of the Capitol of the State, 
from which floated the stars and stripes, and the next 
day advertised my business. I was not without a 
motive. The recruiting service I wanted for a testi- 
mony that a new political power had been born on 
the continent, and that I was its representative in that 
border land. Soon after I repaired, in full uniform, 
to the mayor's court, in morning session, and, before 
his honour Joseph Mayo, took the oath to my com- 
mission, which bound me hand and heart to the 
Confederate States. I had lived in Richmond several 
years, and knew the ground I was treading. I was 
standing in the shadow of a revolution. 

My contact with the Secession party in the con- 
vention at first was entirely social and sympathetic. 
It was confined to General George W. Randolph, an 
able member of the Richmond bar ; Honourable James 
P. Holcombe, the eloquent and learned professor of law 
at the University of Virginia, representing the great 
county of Albemarle ; Honourable James Barbour of 
Culpeper county ; and Honourable Lewis E. Harvie, a 
delegate from Amelia county. The first three I had 
known at the university, and my acquaintance with 
Colonel Harvie was even of an earlier date. Colonel 
Harvie was a typical Virginian as Virginia then stood — 
defiant, with crest erect, before she had been crushed 
in the folds of the constrictor, which had been warmed 
in Washington's bosom and engendered in his political 
folly. He was a prominent member of the planter 
class, had been a distinguished delegate to the State 
Assembly, and, as a follower of Calhoun, delighted to 
accompany his master in the nicest distinctions of 
logic to that shadowy confine where reason stops and 



42 The Republic as 

imagination begins. These gentlemen explained to 
me the condition of parties in the convention, and 
Mr. Holcombe said : " Our trouble is with your 
brother ; how we shall put a hook in the nose of 
Leviathan." I replied : " My brother is a Union 
man, but on the Southern question is as sound as a 
dollar." They did not understand the force they 
would control. 

But my business was with the Union party in the 
convention, and that I could not hope to move except 
through Mr. Scott. My first conversation with him r 
on the subject of my mission to Richmond, was at 
the villa of Honourable James Lyons, a leader at the 
Richmond bar, and later a member of the convention, 
a mile or two from the city, whose daughter, the accom- 
plished, the brilliant, and beautiful Henningham, Mr. 
Scott had married. I spread out before Mr. Scott all the 
evidences of Confederate stability, which so carefully 
and industriously had been collected at Montgomery; 
assured him that the Union organs spoke untruly ; 
that a permanent government had arisen in the South, 
and all that Virginia could do was to choose to which 
nation she would be attached. My auditor was pro- 
foundly interested in the narrative and in my observa- 
tions in explanation of it. We had left the parlour of 
the villa and, as if to be more alone, had entered its 
cultivated grounds, and there the conversation was 
conducted to a conclusion. It was evident to me, 
when we parted, that Mr. Scott was impressed by \ 
what he had heard, but I was not conscious of the 
full effect of my words until a subsequent interview. 
He then remarked with a smile : " You have spoiled 
one of my speeches. It was designed to advocate a 
restoration on the old ground. That I suspect is not 
now possible ; but the Union is too valuable to us to 
be surrendered without a struggle." 

A conference of the border slave states was con- 
sidered by the middle Union party in the Virginia 



a form of Government. 43 

convention as an agency through which the Union 
might be restored, when the arts of persuasion had 
1 ; farther disintegration prevented ; or peace be 
preserved. With that tier of republics it was expected 
:h Carolina, Tennessee, and Arkansas to unite in 
action, though in strictness not border states. By 
this means every slave state, not yet seceded, would 
be brought together and bound in alliance as a 
mediatory agent, powerful for war, but more effi- 
cacious in the persuasive influence which it would 
exert on the separated sections. It was opposed by 
the Secession party because such a subordinate and 
temporary body, when formed, would interpose an 
obstacle to their progress to Montgomery. By the 
ultra Union party it was objected to for the reason 
that it placed a reconstruction around the centre at 
Washington beyond their reach, and launched them 
in a new sea of politics. To this convention of the 
border states Mr. Scott now turned as an instrument 
by which a restored Union might be wrought out, an 
object to which, with the confidence of a strong man, 
he devoted all the energy of his intellect and character. 
As explained to me his plan was this : as soon as 
Virginia had met those border states in conference, 
to which she proposed to invite them, she would 
bring forward for adoption the constitution of the 
United States, but into which had been introduced, 
as a backbone, such an equilibrium of sections as he 
had proposed to Secretary Seward, working by an 
assured apparatus, too strong and too well poised to 
be jostled out of place by the action of the government, 
and the conflicts of parties, as had fared with the 
original design. As soon as the amended constitution 
should be adopted, or even before the work was en- 
tirely finished, the freesoil states, lying along the border, 
as Pennsylvania and Ohio, were to be invited to adhere 
to it as the nucleus of a restored union of the sections. 
At the same time an embassage was to be sent to 



44 The Republic as 

Montgomery, inviting President Davis with the Con- 
federate States in their corporate capacity to attach 
themselves to the new center. This effected, the 
invitation was to be extended to all the other states. 
As soon as this Sovereign convention of the states was 
organized, and an amended constitution adopted, the 
Union would be restored, standing on the original 
compromise of the sections. To render the new order 
agreeable to the West and North, and leave the Repub- 
lican party a shadow of its victory, along with the 
spoil of the Democratic camp, it was a feature of the 
scheme for this revolutionary body to adopt the 
administration of Mr. Lincoln, Mr. Scott observing, 
" With an equilibrium of sections in the constitution 
Lincoln can do us no harm ; or, a new election can be 
ordered." 

Of this plan, as a practical mode of dealing with a 
question of danger and difficulty, two things may be 
observed : — 

(i) It required not the action of the whole border 
to set it in motion, but only one co-operating state, 
as North Carolina, having with Virginia one hand 
and one purpose. Such a conference, held by two 
important states, could amend, adopt, and promulgate 
to all the states, the constitution of 1 787, thus amended, 
as a ground of re-confederation ; as better than dis- 
ruption, which had come ; as better than war, about 
to come. (2) As soon as a proposition for a conference 
of the states, concerning the disorders in the Union, 
was made to each state, Lincoln would be disarmed, 
and the virus extracted from the Republican party. 
The serpent would retain indeed its rattles, but its 
fangs and poison-bag would be extracted ; for they 
could not make war on the pretext that it was neces- 
sary to restore the Union. As by the wave of a wand 
in the hand of a master magician, the situation in 
stantly would be changed. Secession, a troubled 
spirit, evoked by the times and the sorceries of the 



; 



a form of Government. 45 

Republican party, would disappear, retreating with 
the shades of night. The question addressed to the 
North and West then would be : Shall we adhere to 
the Union as designed by our forefathers, a system of 
balanced justice ; or shall we make war that we may 
hold South section for its cane fields, its rice fields, 
and its cotton fields, as Rome held Africa for its 
granaries ? With quick intelligence Mr. Seward, and 
with sturdy common sense Mr. Lincoln, would have 
seen that they could not plunge the states of the Free 
Soil section in war to preserve the ascendancy of the 
North in the Union, contrary to equity and the pur- 
pose of the original bargain, against states who con- 
sented to a union resting on the reasonable ground 
of equality. Thus would have been produced a con- 
stitutional revolution by a convention of the states, 
but not convoked according to the prescribed mode ; 
the mode would have been irregular, but justified by 
precedent, and by necessity, the imperious law of 
revolutions. The small boat hugs the shore and so 
creeps to its destination, but the gallant ship turns her 
prow oceanward and seeks the harbour by a highway 
where the hurricane dwells. 

Instantly the proposal received my approval, as, 
by their own act, the Confederate States would be 
placed in association with Virginia, and, probably, 
with the other non-seceded states of the Slave section. 
Mr. Scott conceived that the conference would have 
greater authority, and Virginia a greater influence in 
it, if it were supported in the convention by the Seces- 
sion party also ; for in this way the entire body would 
be brought together, except a very small, impracti- 
cable fraction of it. Being identified by opinion, and 
my representative character, with the Secessionists in 
the convention, I was requested to discover if that 
political interest could be induced to accept the con- 
ference of border states instead of their own measure of 
immediate secession. A caucus of that party, soon after 



46 The Republic as 

my arrival in Richmond, had been held in an apart- 
ment of the Spotswood Hotel, recognized as Secession 
headquarters, and I had been honoured with an invi- 
tation to attend it. 1 The interests and tactics of the 
party were discussed in my presence, and I discovered 
that James Barbour of Culpeper was the leader. He 
was well known to me : an able man, a lawyer by pro- 
fession, and ripe and experienced in the public affairs 
of Virginia. By force of intellect and eloquence he had 
been the front man of his party wherever he had acted, 
and I found him in that position again. I approached 
Mr. Barbour frankly and explained to him the purpose 
to which a border slave state conference was sought 
to be applied, and, in strong terms, urged him to bring 
his party to the support of that measure. I knew 
that, in common with the leaders at Montgomery, he 
was a disunionist from necessity, because the South 
had become a helpless dependent in the Union, and 
not because he regarded a Slave or Southern Republic 
with complacency. In a day or two he informed me 
that his party could not be induced to surrender its 
chosen ground, and so I reported. My information 
was received with composure, Mr. Scott simply re- 
marking : " Let them take their vote on secession. 
They will discover how weak they are, and then they 
will support the conference : there will be nothing else 
left for them to do." The vote was taken, immediate 
secession was beaten, and, as if moving on a pivot, Mr. 
Barbour's party wheeled into the support of the Border 
State Conference, the professed and real object of 
which was to act as an ambassador of restoration and 
fraternal feeling between the dissevered sections. 

About that time I was pained to hear a prominent 
member of the Secession party declare in a public 
place, the Exchange Hotel, in the presence of many 
persons, as if in explanation and defence of his own 

1 The hotel subsequently was burned, a holocaust to the Con- 
federacy. 



a form of Government. 47 

adhesion to it, that the Border Slave State Conference, 
by a circuitous way, was but a mode of secession. The 
member of the convention said : 

44 The conference now means the secession of Vir- 
ginia from the Northern Union, but she will not de- 
part alone." 

The convention had held its sessions in the Me- 
chanics' Institute, but had moved across the street to 
occupy the hall of the House of Delegates upon the 
adjournment of the legislature. There I heard Mr. 
Carlysle, a leader in the ultra Union faction, in an 
animated and determined speech against the confer- 
ence, say : 

44 I understand now what the proposed meeting of 
the states of the slave border means. It means the 
secession of Virginia, and she is to carry with her, as a 
retinue, every state of the slave border. I denounce 
that conference, by whatever name called, and by 
whatever party proposed, or supported, as a contri- 
vance of the Secessionists. I denounce it as a cat in 
the meal tub." 

By the courtesy of the door-keeper, and at the 
request of Mr. Scott, I had been admitted to the floor 
of the convention, and was sitting across the aisle 
from him when that speech was made. As soon as it 
was concluded I advanced to Mr. Scott, remarking : 

11 Your conference moves too slowly; I fear it will 
not be allowed to meet." 

It did not assemble, being arrested by a declaration 
of war from Mr. Lincoln, of which it was the cause — 
for no man in his sober senses could believe that Presi- 
dent Lincoln and his advisers, especially the acute 
and wily Seward, supposed that the purpose of the 
conference was to precipitate the border slave states 
into secession, or that such an advisory and consulta- 
tive body could have produced so astounding a result. 
The Virginian delegates, sent by a sovereign body, 
might have been clothed with extraordinary powers, 



48 The Republic as 

but from every other state the deputies would have 
been commissioned by legislatures, or governors, or by 
authorities even more subordinate. The declaration 
of the secession member, exaggerated into undue im- 
portance by Mr. Carlysle, was a child's story, and could 
not have been credited in Washington. The acute 
intelligence of the Premier reasoned from more assured 
premises. He understood the object of the assemblage 
of the borderslavestateswellenoughwhen he beheld the 
mass of the middle Union party, composed of men of 
honour and weight, supporting it, Mr. Scott prominent 
among them with his equilibrium of sections. A con- 
ference at Washington had scornfully rejected the equi- 
librium, but one held somewhere on the border might 
adopt it and recommend it to the states as ground on 
which to compound with secession. Federal coercion of 
state, or section, nowhere to be found in the constitution, 
defeated the proposed conference. But there was a 
co-operating agency without which it could not have 
been effected. A conference of border states, which 
should have been called promptly, was not called 
at all. The convention was oppressed by a disease 
of speaking, an abundance of superfluous breath, the 
incurable distemper of public assemblies in America, 
perhaps of such bodies everywhere. It was that cause 
which enabled its enemies to destroy the conference. 
Lawyers thronged the ranks of that body, and every 
lawyer had his speech to make, some of them several 
speeches. His importance at home demanded it, and 
that to the lawyer is always of greatest consequence. 
In this way valuable time was wasted by orators who 
did not understand the crisis, until the soldier was 
invoked to settle the quarrels of the politicians. The 
quidnuncs and the newspapers, at the North, began to 
say : " Virginia is playing false with the Border Con- 
ference. In secret league she is working with the 
Secessionists." This was what the War party desired, 
and thus her mission for a restored Union was frus- 






aforvi of Government. 49 

trated and the sections plunged in the sanguinary 
struggle of four years. 

It was after Virginia thus had been expelled from 
the Union, by a crafty policy at Washington, and 
whilst preparations for war occupied every mind and 
hand in Richmond, that I stood with Mr. Scott in the 
Capitol Square, at the base of the equestrian statue of 
Washington, created by the genius of Crawford. The 
grounds were covered with volunteer companies 
from the Cotton section, displaying their various flags, 
which were hurried forward, as soon as mustered in, 
as Confederate soldiers, to General Beauregard's camp 
at Manassas. Martial music charmed the air, and 
Washington, with stony eye, gazed at the horizon. 
After we had surveyed the interesting spectacle in 
silence, I said to Mr. Scott : 

" There are but two men in the South who know 
the true cause of this war, the two who stand here." 

He assented ; and I continued : 

" I, doubtless, will go down in the strife, but you 
will survive to relate the fact." 

But in the providence of Almighty God the costlier 
was demanded for the sacrifice, and the other has been 
left to tell this tale. 

After the victory at Manassas, it was placed in the 
power of South section to restore the Union on the 
base of the equilibrium, and a statesman, having that 
as a fixed purpose, would have seized the offered oc- 
casion. But Mr. Scott was in private life, not having 
been elected by the voters of his district to the Con- 
federate Congress, to which before he had been dele- 
gated by the Sovereign convention. The North lay 
prostrate before an army of thirty thousand young 
planters from the Slave section, to whom war was as a 
pastime. The young tiger had tasted blood, and was 
in no mood to listen to odes of peace set to the music of 
the Union. But the statesman, standing at the helm 
inflexible, controls armies, and the passions of men 

E 






50 The Republic as 

obey him. Mr. Scott was not in the Confederate army. 
He conceived himself bound by obligations of duty to 
remain at home and meet the enemy on that field. 
" Besides," he said, "I know nothing of military affairs." 
But General Early, who had served with him in public 
life — notably in the Convention of 1850, and again in 
the Secession Convention — a Union man as long as it 
was proper for a Virginian to be so, but then an able 
and devoted commander in the Southern army, said, 
in speaking to me of Mr. Scott in his camp at Wolf- 
run-shoals : 

" His place is in the army, for he possesses in an 
eminent degree the two highest qualities of a soldier, 
— intellect and courage." 

And no one was better qualified to judge these high 
attributes than that able soldier. 

Mr. Scott was killed whilst leading a party of his 
neighbours in an attempt to capture a band of Federal 
marauders, who had taken post in a farm-house. 
The beleaguered soldiers emptied their guns on their 
assailants, and Mr. Scott, ever careless of danger, 
received a musket-ball in the breast ; but, gallant and 
self-possessed to the last, he called to his men to close 
on them, " Now is your time ! " And these were his 
last words. 

This episode has been a long one, but it is not 
without its uses in this book. It exposes to view self- 
government in a period of revolution, when a governing 
authority is most required, and shows w T hat automata 
the people then are. In war, or in peace, they have 
as little to do with the government as the spectators 
J with a play, or the soldiers with the command of the 
army which they compose. They censure or applaud 
jthe actors, they obey the orders which they receive — 
that is all. 

We have explored, but not with M. de Tocqueville 
for our cicerone, the foundations of the Republican 
system of the United States, and have discovered that 



a form of Government. 5 1 

they were laid by a sect of philosophers who expected 
to control government by a set of moral phrases — 
saying to Ambition. Be reasonable and just; to Folly, 
Be wise ; to Want, Be satisfied ; to the Passions of men, 
Be hushed. They expected 

" With winning words to conquer willing hearts, 
And make persuasion do the work of fear." 

Piping shepherds were those fathers of the Re- 
public, suited to Arcadia and Saturn's reign, but not 
suited to the heaving, bustling eighteenth century, 
when they founded a State on a Declaration of Rights 
which they believed would be respected for all time. 
Those dreamers were indoctrinated by books, written 
by other dreamers, teaching that it would be sufficient 
to hold in check the worst passions and purify from 
ambition and venality the hearts of politicians. They 
had made a new departure in politics. Kings and 
nobles they expelled from the pale. The wisdom of 
the old past, wrung from the sweat and toil of cen- 
turies, they counted as foolishness when set by the 
new light which they had struck in the wilderness. 
The commonalty, the great mass upon whom the 
weight of society rested, occupied with the business 
and oppressed with the cares of life, knowing a little 
of everything but knowing nothing thoroughly, they 
converted by the theory of their system into the 
active principle of government, and declared them to 
be the only rightful source of authority. So ignorant 
were those sapient fathers of the tools which they had 
to handle, in building the projected temple, that they 
appear not to have comprehended when they began 
work, though they quickly learned it, that the majority, 
the tyrant of their system, evoked from the dark caverns 
where dwell infernal spirits, was the most irresponsible, 
and the most despotic, of all the powers of govern- 
ment, and most needed control. Not Caesar in his 
palace, not Caesar on his throne was more so. The 



5 2 The Republic as 

courts, from attachment to forms, which as lawyers 
they adore, have ventured to impose a single restraint 
upon that potentate. When they wield their little 
tridents and wear their sapphire crowns, the judges 
require the majority to invest its acts with the solem- 
nities of law, a condition not always insisted upon by 
Congress when it enlarges the Union by the admission 
of new states. By this novel theory, coined by Jef- 
ferson and Mason, government is expected to hold 
society in obedience by its excellent virtues, not by 
rude unhandsome force. A century passes — nay, but 
seventy years pass — and the soldier appears on the 
scene. He finds the politician engrossed with the 
profitable business of government, and each man with 
a fox strapped to his belt. With his gauntlet the 
soldier brushes away the gossamer fabric, and sub- 
stitutes the fact of power for an unplausible theory. 
Thus perished a day-dream of the eighteenth century, 
which cost America much blood and sorrow. A 
gigantic civil war, with its torrent waves, was a rude 
awakening ! 

When we would trace ideas to their source, it is a 
fact worthy of attention that those fine-spun theories 
of personal and political right did not come from the 
Puritans of New England, the Yankees of our day, 
but were the reveries, or the vagaries, of the Cavalier 
of Virginia, who, expelled by Cromwell from his 
British home, had created a great state in the wilds 
of America, as his adversary, the Puritan, had done 
to the northward of him, in a cheerless, ice-bound 
region, Thus, in the lottery of nations, those invete- 
rate opponents found themselves confronted on a new 
theatre. They had been unable to dwell in amity 
within the bounds of an island, would they be better 
friends with a new world open before them ? We see 
before us the Saxon and the Norman, standing on 
the ocean's margin, prepared for great destinies ! Far 
back in race-history the two had sprung from the 



a form of Government. 53 

same stock. Each had been a conqueror. Now they 
represented opposing social ideas. The Cavalier and 
the Roundhead, dwelling apart in their new homes, 
at first were allies, but they became enemies when 
buckled in the same belt. 1 

During the Puritan ascendency in the mother 
country, the Roundhead was the spoiled darling of 
the Commonwealth, but, after the House of Stuart 
was restored to the throne, British power looked 
coldly upon the American Puritan, ever gravitating 
towards the Republic, whilst it was a nursing-mother 
to the Cavalier of Virginia, whom it trusted for his 
loyalty, and favoured for the aristocratic cast in which 
he had laid the base of his imperial colonial structure. 
On account of his fidelity, when darkness had gathered 
around the House of Stuart, his rude country had 

1 Mr. Lecky does not appear to have examined with his usual 
care the sectional problem when he said : " The conditions of 
climate which made the Northern provinces free states and the 
Southern provinces slave states, established between them an 
intense social and moral repulsion, kindled mutual feelings of 
hatred and contempt, and in our own day produced a war which 
threatened the whole future of American civilization." — "England 
in the Eighteenth Century," vol. ii. p. 19. 

The sections would have lived together in friendship under 
the sceptre of an autocrat, or might have been good neighbours 
under independent governments, as France and England now 
are ; but the attempt by two such contrariant bodies, or political 
forces, to carry on a common government made by such a con- 
stitution as that of 1787, produced between them an intense 
social and moral repulsion, productive of hatred, contempt, and 
war. For all these calamities the Americans have to thank the 
criminal stupidity of the British Tory party, the crafty politics 
of the Count de Vergennes, and the ambition of General 
YV ishington, not satisfied with the obscure but useful life of a 
colonial planter and a seat among the burgesses. By the 
revolution and the Constitution of 1787, Virginia has lost inde- 
pendence and her colonial empire, and has become a tributary 
of New England capitalists, and her only compensation is the 
glory of George Washington, which North section very properly 
claims as its property. 



54 The Republic as 

been called the " Old Dominion," and his prosperous 
development had not been repressed under those 
bright Western skies. A great empire, recently wrung 
from France, had been graciously confirmed to this 
favourite of the Crown. Never were the beginnings 
of a State so fortunate ! But an evil principle had 
entered into that paradise of nations, and the bewil- 
dered and seduced Adam fell off from his bountiful 
creator. The quiddity of the tea duty, as Burke 
scornfully calls it — no new tax, to be sure, but the 
remnant of an old English export duty of which 
nobody complained — did not quite agree with some 
notions which, in the leisure of a slaveholders life, he 
had learned from Milton and Locke — "did not exactly 
square with all his theoretical whimsies " — and there- 
fore he went into revolution. 1 For this act of romantic 
folly his posterity have had the greater part of the 
territory of their nascent empire taken from them, and 
themselves, with the leavings of theirgreat inheritance, 
amerced in an annual tribute of many millions, imposed 
by the Puritan, swelled out with his accretions, 
operating what he falsely and insultingly calls a 
common government. Thus Virginia was 

" As is the bud bit with an envious worm, 
Ere he can spread his sweet leaves to the air, 
Or dedicate his beauty to the sun." 

Very unlike the Cavalier of Virginia was the Puritan 
of New England, descended from the pirates and 
robbers of Scandinavia and the Cimbric Peninsula. 
This man did not at all disturb his thoughts with the 
metaphysics of politics, like his softer, visionary brother 
of the South, but was always looking for solid results. 
" Money is a steady friend," and that maxim compre- 
hended with the Puritan the whole philosophy of life, 
and was even more venerated in New England than 

1 George Tucker's " History of the United States." 



a form of Government. 5 5 

it was in Scotland, where the saw had been formed. 1 
The rugged and inhospitable zone which he inhabited 
reminded him each hour of the wisdom of this homely 
adage — a land not the ideal abode of the dreamer ! 
The Navigation Act always had injured his business, 
and its bonds had been tightened by George Grenville, 
one of the purblind statesmen of England, a lawyer 
set at the head of a great empire, Phaeton driving the 
sun-chariot, whilst the Puritan, with his Norse blood 
stirring in his veins, longed for the freedom of the 
seas. With the ocean open to his adventurous sail, 
he was satisfied that he would be able to traffic as 
profitably in the productions of the Spanish and 
French West Indies as he then traded in slaves torn 
from the barbaric shores of Western Africa, to supply 
the plantations of Virginia and Carolina, and fill his 
barracoons for casual customers. But the liberty of 
nature he could not hope to enjoy except with inde- 
pendence, for the unconstitutionality, which he had 
charged with success on the Stamp Act, could not be 
urged against these restrictions on his trade, which were 
authorised by undoubted parliamentary precedent. 2 
Therefore he resolved to precipitate independence, 
and, in that congenial enterprise, stood ready to em- 
ploy force or guile, as either would serve his purpose. 
With the theoretical, dreaming Cavalier, the revolu- 
tion was a sentiment which did little honour to his 
head ; but with the Yankee, it meant thrift and power. 
For that act done in the colony era, like the penalty 
of original sin, the visionary has been made the serf 
of the unscrupulous slave-dealer, and the rude Saxon 
has conquered the polite and chivalrous Norman. Such 
is retribution in history. 

1 I find the honoured proverb in the " Wealth of Nations." 

2 See Marshall's " Life of Washington," first edition, where the 
subject is carefully and candidly examined by a mind competent 
to deal with it. 



56 The Republic as 

But truth requires it to be told that a free ocean 
commerce was not the only, nor the strongest, motive 
that impelled the New Englander in his course towards 
independence. He trusted to induce Catholic Canada 
to join his revolt by the offer of a Union to the Cana- 
dians, a subtle contrivance of conquest and enslave- 
ment, as well understood by the Yankees as once was, 
by that martial nation, the adoption as " the friend 
and ally of the Roman people." As soon as the un- 
happy province should be withdrawn from British 
protection by the treacherous bait of independence 
and moulded to New England, he would hang and 
whip the Catholic, who did not adore the Puritan God, 
as, for that pious felony, he had hanged and whipped 
the Quakers. Outside of slavery and the slave trade, 
with their attendant severities, religious persecution 
was the only solace of that gloomy fanatic. Indian 
slaves he had tried, but they had proved too feeble for 
his w T ork, and, like the humane Las Casas, he substi- 
tuted the robuster negro. 1 

1 " The History of Slavery in Massachusetts/' by Mr. George 
H. Moore, Librarian of the New York Historical Society, &c, 
confirms this statement by the ample proofs which it contains. The 
book abounds with revolting pictures. It presents the Puritan 
left free in a new world to develop his avaricious and cruel nature. 
On the first pages are given the earliest records of slaver}' in 
Massachusetts, the period of the Pequod War, which occurred a 
few years after the English settlements had been founded. In 
1637, Hugh Peter writes from Salem to John Winthrop : "Mr. 
Endicott and myself salute you in the Lord Jesus ! We have 
heard of a dividence of women and children in the Bay and 
would be glad of a share, a young woman, or girl, and a boy, if 
you think good. I wrote you for some boys for Bermudas, which 
I think is considerable. In the Pequod War we took many pri- 
soners, who were disposed of to particular persons in the country." 
Winthrop, P. I., the same authority, says : " Two hundred and 
thirty-two of these captives ran away, and having been brought 
in again were branded on their shoulders." Winthrop states, 
vol. i. p. 234, " We have now slain and taken in all about seven 
hundred. We sent fifteen of the boys and two women to Ber- 
muda, to Mr. Pierce, but missing it, he carried them to Providence 



a form of Government. 5 7 

Mr. Moore's book is difficult to be obtained, but a 

friend, 1 finding it in a library of Baltimore, has picked 

out these delicate morsels for my use. An attempt 

made to suppress the work, but before the ship is 

scuttled a part of the cargo has been saved. 




CHAPTER IV. 

HIS chapter will be devoted to the agita- 
tion for Federal reform, out of which grew 
the constitution which now governs the 
Union. It forms a part of the history of 
that renowned polity, important and in- 
teresting, and will afford, in the means by which it 

Isle.' 1 Governor Winthrop, writing to Governor Bradford, of 
Plymouth, an account of the success against the Pequods, says : 
" The prisoners were divided, some to the Connecticut colony, 
the rest to us. Of these, we sent the male children to Ber- 
muda, to Mr. Pierce, and the women and maid children are 
disposed about in the towns.''' (Pp. 4 and 5). Emanuel Downing, 
a lawyer of the Inner Temple, London, who married Lucy Win- 
throp, came to New England in 1638. He informs his brother 
in a letter : " A war with the Narragansetts is very considerable 
to this plantation, for I doubt not if it be not sin in us, having 
power in our hands, to suffer them to maintain the worship of 
the devil, which their Paw-waws often do. If, upon a just war, 
the Lord should deliver them into our hands, we might even 
have men, women, and children enough to exchange for Moors, 
which will be more gainful pillage to us than we concern for, for 
I do not >ee how we can thrive until we get into a stock of slaves 
to do all our business, for our children's children will hardly see 
this great continent filled with people ; so that our servants will 
still desire servants to plant for themselves and not stay but for 
great wages I suppose you know very well how we shall main- 
tain twenty Moors cheaper than one English servant." 

1 That friend is my brother, Dr. Martin P. Scott, a Professor 
at Blacksburg College, Virginia, who had been told of my line 
of thought, and who coincides in my estimate of the American 
Puritan, who would enslave the Indian race and emancipate the 
African. 



5 8 The Republic as 

was brought about, convincing evidence of the correct- 
ness of our general proposition, that in these liberty- 
systems of the West the politician is the true actuating 
power, the voters being but dumb figures moved that 
the game may be played — ciphers, indeed, which are 
rendered potential by the numerals to which they are 
attached. Perhaps the reader will not condemn as 
superfluous, or fatiguing, a multiplication of examples 
to enforce this essential truth, as the ordinary man, 
except by the logic of facts, cannot be disenchanted 
of the belief that the Republic is a mode of political 
life derived from, and directed by, the people — an error 
bathed in tears and blood, like the altar of some grim 
idol ! To render the subject intelligible, it will be 
necessary to place the reader where the men of that 
generation stood, by an examination of the purpose 
and the structure of the Articles of Confederation, to 
alter which the various reforms were proposed, and to 
supersede which a new constitution finally was made 
and adopted. It is a continuous narrative, and no 
part of it should be omitted, as it sets before us in the 
truest colours the character of the politician, with his 
unfair and specious devices. It shows that of all 
sovereigns he is the most disqualified, from the absence 
of unselfish motive, to reign over a nation. Alexander 
Hamilton compared the Confederation, or first con- 
stitution of the United States, to a man moving on 
crutches, and declared it to be fit neither for peace nor 
war, a verdict which we will not record until its cor- 
rectness has been ascertained and the jury polled. As 
a form of government the articles were reported by a 
committee of Congress eight days after the Declara- 
tion of Independence was adopted. They were debated 
and amended, as the opportunities of Congress allowed, 
until the 15th day of November, 1777, Congress, until 
that time, conducting public affairs without a consti- 
tution, but professing to be guided by the proposed 
Federal Articles after they were formed. It was then 



a form of Government. 59 

submitted to the states for approval, as provided in 
the articles, but accompanied by a circular letter in 
which Congress speaks of the extreme difficulty of their 
task : " This business, equally intricate and important, 
has, in its progress, been attended with uncommon 
embarrassment and delay, which the most anxious solici- 
tude and persevering diligence could not prevent. To 
form a permanent Union accommodated to the opinion 
and wishes of so many states, differing in habits, pro- 
duce, commerce, and internal police, was found to be 
a work which nothing but time and reflection, con- 
spiring with a disposition to conciliate, could mature 
and accomplish." Such were the obstacles, insur- 
mountable, a Burke would have thought, which those 
statesmen encountered in constructing their first general 
government. Jefferson, always industrious, has pre- 
served a fragment of their debates, from which may 
be judged the perplexing questions which intruded for 
adjustment. But perseverance was rewarded by the 
creation of a system of Union for the states, which 
established itself in the affections of the people so 
strongly, that subsequently the politicians found it im- 
possible to disengage them from it when they sought, 
in pursuit of their own schemes, to bring it into dis- 
credit. 

After a decent delay of six days the Federal Articles 
were adopted by the Legislature of Virginia on the 
nth day of December, 1777; and, in the early part of 
the ensuing year, nine other states accepted them, and 
its ratification in Congress by their delegates, duly 
authorized, occurred at successive dates. But the work 
of adoption was not finished, and the government 
rendered operative, until March 1st, I78i,when Mary- 
land acceded to the league, and completed the circle 
of adopting states. 

As early as July 21st, 1775, the sage Doctor Ben- 
jamin Franklin, one of the few worthies destined never 
to be forgotten, proposed to the Continental Congress 



60 The Republic as 

a plan of government entitled "Articles of Confedera- 
tion and Perpetual Union of the Colonies," which 
formed the first feeble germ of the colossal power 
which dominates the ocean-bound Republic of the 
United States. That proposed constitution for the 
" United Colonies " certifies an important fact, as it 
was designed for them when they were enticed, by 
French diplomacy, into taking the first false step o 
fighting in the British Union, that they might wrest 
by force from the King a redress of grievances, as 
had been done at Runnymede, to be guaranteed also 
by a great charter. Such was the plan that had been 
digested in Paris by the Count de Vergennes, and ac- 
cepted by his obedient servants in Carpenter's Hall 
The colonists, deceived by the liquorish bait, were 
caught in the diplomatic trap. As proof that they 
were induced by cajolery into taking up arms to re- 
dress grievances, as their ill-humours were pompously 
styled, I lay before the reader a portion of a " Decla- 
ration to the People of the Colony of Virginia," pub 
lished by the Convention of July, 1775 — for it is fitting 
that truth, when she goes abroad, should be accom 
panied, like a right royal lady, by a retinue of evidences 
and vouchers. Under the advice of the conspirators 
assembled at Carpenter's Hall, in the city of Phila- 
delphia, hostilities had been precipitated in Massa- 
chusetts. The civil war, thus begun by State, o 
rather by Colonial authority, was adopted by Con 
gress, still holding its sessions in the territory of the 
British Empire ; Washington was appointed com- 
mander of the rebel forces, and, by the concertec 
action of a revolutionary faction, the resistance was 
spread into every colony. The declaration of Virginia 
notwithstanding the fact of war, concludes with these 
remarkable words — the revolution wearing the mask 
of loyalty until the last moment. Such were the snares 
by which that unhappy people were encompassed, such 
the falsehood and fraud by which they were betrayec 



a form of Government. 61 

by the tools of France playing the role of patriots ! 
The Revolutionary party in Virginia, assembled in 
convention, thus speak : "Lest our views and designs 
should be misrepresented, we again, and for all time, 
publicly and solemnly declare, before God and the 
world, that we bear faith and allegiance to his majesty 
George the Third, our only rightful and lawful king. 
That we will, as long as it may be in our power, defend 
him and his government, founded on the laws and well- 
known principles of the constitution ; that we will, to 
the utmost of our power, preserve peace and order 
throughout the country ; and endeavour by every 
honourable means to promote a restoration of that 
peace and amity which so long, and so happily, sub- 
sisted between our fellow-subjects in Great Britain and 
the inhabitants of America ; that as, on the one hand, 
we are determined to defend our lives and properties 
and maintain our just rights and privileges at every 
and the extremest hazard, so, on the other, it is our 
fixed and unalterable intention to disband such forces 
as may be raised in this colony whenever our dangers 
are removed and America is restored to that former 
state of tranquillity and happiness, the interruption of 
which is so much deplored by us and every friend of 
the country." 

Ten months later the same body of patriots, with 
these oaths and protestations of loyalty still in their 
mouths, adopted a Declaration of Independence, to be 
followed in a few months by the historical declaration 
which Jefferson wrote for the Continental Congress, 
and which was adopted on the succeeding 4th of July. 
In that disloyal assembly, representing a revolutionary 
faction in Fauquier county, recently exscinded from 
the ample domain of Prince William county, sat 
Colonel Martin Pickett, the maternal grandfather of 
Honourable Robert Eden Scott, and Captain James 
Scott (the heir in tail), his father's uncle, both planters 



62 The Republic as 

and slaveholders in the colony. 1 But his father's father 
John Scott, a younger brother of Captain James Scott, 
adhered to the Crown, and, with manly firmness 
endured the persecutions of those times. He hac 
crossed the great river into Maryland, and, in con- 
junction with Sir Robert Eden, whom he had known 
whilst he was abroad engaged in the business of edu- 
cation, one on the Vice-regal throne, the other in the 
popular assembly, there had breasted the revolution 
how vainly, the result, and his own expulsion from the 
colony, proved. The patriots, as those misguided mer 
called themselves, seized him, tried him at Annapolis 
and, after other places of exile, sent him back to Fau- 
quier with a judgment not to come again within fifty 
miles of their boundary ; for Luther Martin, the orator 
of the revolution, said he was his most formidable 
opponent. 2 After his return to Virginia he took nc 
further part in the revolution, except, if local traditior 
may be trusted, to induce a company of volunteers, on 
the march to join Washington, engaged in the siege of 
Boston, to return to their homes. Perhaps, with the 
intuition of a scholar, he saw, outlined in the shadowy 
distance, the dark Northern tyranny which the Round- 
head afterwards established over the empire of the 
Cavalier, as the result of the movement for indepen- 
dence. 

When, soon after, Lord Howe came, offering a re- 

1 Honourable Robert Eden Scott was the oldest son of Judge 
John Scott of Oakwood, one of the Justices of the General Court 
of Virginia. Judge Scott was younger brother to Professor 
Robert Eden Scott, and grandson to Professor Thomas Gordon, 
both of King's College, Old Aberdeen, Scotland. The older son 
was born whilst his father was a student of King's College, but 
the younger was born at Gordonsdale, in Fauquier county, during 
the revolution, " in the worst of times," as the family Bible still 
records. 

2 These facts were communicated to me when a child by my 
aunt, Mistress Peyton of Gordonsdale, a daughter of John 
Scott. 



a form of Government. 63 

dress of grievances, the revolutionary leaders, as 
Marshall tells us, sent Franklin and John Adams to 
meet the British Plenipotentiary, in an island of New 
York Bay, to baffle and defeat the negotiation, which 
those expert and crafty ministers succeeded in doing. 

Upon the policy of the revolutionists, Marshall thus 
frankly remarks : " Hitherto the war had been carried 
on with the avowed wish to obtain the redress of 
grievances. The utmost horror at the idea of attempt- 
ing independence had been expressed ! " 

Events followed in the train prepared by the 
plotters of Carpenter's Hall. As expected, by the 
French Court and the co-conspirators in America, 
the injuries and passions, attendant on war, more 
widely separated the belligerents, and a twelvemonth 
closed in a declaration of independence, instead of 
restored friendship. Jefferson, safe under the flag of 
a victorious republic, frankly admits, but for the atro- 
cities committed on the colonial population by the 
Waldeckers and Hessians, during that period of war, 
that independence could not have been carried through 
the Congress. The American Revolution then, when 
we get behind the curtain, and into the secrets of a 
revolutionary conclave, we find was not produced by 
the oppressions of the British Government, according 
to the common American story, but by the statecraft 
of the Count de Vergennes, the Premier of Louis 
XVI., carried into effect by a treacherous party in 
America. This, then, in the long black catalogue, is 
the first great deception which the politicians of 
America practised on the people. To discover it 
we must recur to the period when the national life 
began, although adepts in that bad art had preceded 
them in the colony of Virginia. This statement, 
directly and unconditionally made, is sustained by 
the testimony of Jefferson, actor and witness in those 
important scenes. The convention, which tore Virginia 
from the empire of George III., instituted an indepen- 



64 The Republic as 

dent Republic, and dispatched five delegates to pro- 
pose independence to the Federal Congress, met in 
Williamsburg, May, 1776, having received even from 
the faction which elected it, authority to do no one of 
these things, but were commissioned only to attend 
to the ordinary public business, and employ the 
resources of the colony in waging the remarkable 
contest in which Congress, at the instigation of the 
French Government, had engaged it. In its earliest 
germ, as in its aftergrowth, we discover the Republic 
of the United States to have been exclusively the 
work of the politician. The voters did not authorise the 
separation from England, and their leaders dared not 
invite them to render it legitimate by a popular rati- 
fication. It was a criminal conspiracy, to which 
Washington was both privy and party, and the 
means of tracing it still exist. Virginia was the 
important power to gain. Until she had leaped the 
strong barriers of the Empire, the revolutionary party 
in the other colonies cautiously held back. She was 
made to play the part of Archibald-Bell-the-Cat, in 
Scotch history. Both Jefferson and Hugh Blair 
Grig by, the Froissart of Virginia — except that Frois- 
sart wrote about soldiers and Grigsby writes about 
politicians — set the transaction clearly before us. I j 
quote from Jefferson : " On the discontinuance of the 
assemblies, it became necessary to substitute some 
other bodies, competent to the ordinary business of 
government, and to the calling forth of the powers of 
the state for the maintenance of our opposition to 
Great Britain. Conventions therefore were introduced, 
consisting of two delegates from each county meeting I 
the others, and forming one house on the plan of the 
former House of Burgesses, to whose places they suc- 
ceeded. They were at first chosen for every particular 
session. But in March, 1775, they recommended to 
the people to choose a convention that should con- 
tinue in office one year. This was accordingly done 



a form of Government. 65 

in April, 1775, and, in the July following, that con- 
vention provided for the election of delegates in the 
month of April annually. It is well known that in 
July, 1775, when the Declaration was adopted, a sepa- 
ration from Great Britain, and establishment of re- 
publican government, had never entered into any 
person's mind. A convention, therefore, chosen under 
that ordinance, cannot be said to have been chosen 
for purposes which did not exist in the minds of those 
who passed it. Under this ordinance, at the annual 
election in April, 1776, a convention for the year was 
chosen. Independence, and the establishment of a 
new form of government, were not even yet the ob- 
jects of the people at large. One extract from the 
pamphlet called " Common Sense " (written by Thomas 
Paine) had appeared in the Virginia papers in February, 
and copies of the pamphlet had gotten into a few hands. 
But the idea had not been opened to the mass of the 
people in April, much less can it be said that they had 
made up their minds in its favour. So that the electors 
in April, 1776, no more than the legislators in July, 
1775, not thinking of independence and a permanent 
republic, could not mean to vest in these delegates 
powers of establishing them, or any other authorities 
than those of an ordinary legislature. So far as a 
temporary organization of government was necessary 
to render our opposition energetic, so far their organi- 
zation was valid. But they received, in their creation, 
no powers but what were given to every legislature 
before or since. (" Notes on Virginia.") In this state- 
ment Jefferson only desires to instruct Marbois in the 
fact that the convention had no authority from the 
people to make a constitution, but only an authority 
to enact a repealable ordinance, which he contended the 
first constitution of Virginia was, — repealable by the 
legislature. But truth sometimes carries a double edge. 
So far then as the colony of Virginia was concerned, 
we have proof that the revolution of 1776, with its long 

F 



66 The Republic as 

train of adversities, was unauthorized by the people of 
Virginia, and unauthorized even by the party of griev- 
ances. It is plain then that the men who pushed 
Virginia out of the British Union, and inveigled her 
into the American Union, were usurpers of the popular 
authority, countenanced and led by French influence, 
and sustained by French arms. 

The desertion of the American army and cause by 
General Benedict Arnold, when in the splendour of his 
military reputation, and the reasons which impelled 
the dishonourable act which accompanied it, strikingly 
illustrates this part of American history. In common 
with others who sought to obtain a redress of griev- 
ances, Arnold concurred in the dangerous policy of 
armed resistance as the one best calculated to effect 
that object. To carry it out, and give it a formidable 
aspect, Congress projected a constitution, enlisted an 
army, appointed a commander-in-chief, issued an im- 
mense volume of paper money with which to supply 
their treasury, and adopted other measures suitable to 
the belligerent character. Avowedly for the redress of 
grievances, but for nothing more, Congress adopted 
the siege of Boston, and sent their general to assume 
command of the army of New England. 1 In this 
contest with the legitimate authority, Arnold, by 
brilliant displays of military talent, courage in battle 
and fortitude under the severest hardships, had won 
the admiration and acquired the confidence of the 
army, of its commander, of Congress, and of his party. 
Had he been reconciled to drift with the current, origi- 
nated at Carpenter's Hall and directed by Congress, 
and have passed from armed resistance into revolution, 
there was no object to which a reasonable ambition 
might not have aspired. But, amid the clash of arms, 

1 The correspondence of Washington, even in Sparks' expur- 
gated edition, contains a strong expression of this policy. The 
American orators and pamphleteers talked much and loudly of 
Runnymede and the Great Charter. 



a form of Government. 67 

the patriot was not extinguished in the soldier, nor the 
purpose forgotten which had brought him to the field. 
The conviction that a British connection was necessary 
to the welfare of the undeveloped colonies was rooted 
in General Arnold's opinion. Nor was he undeceived 
when the Declaration of Independence appeared ; for 
he regarded that measure, according to the general 
explanation, as a mere stroke of policy designed to 
alarm the ministry and hasten the full concessions 
which at last were made. Whilst it stood alone, the 
Declaration was revokable at the will of Congress. It 
bound no body but themselves. But the error into 
which he had been betrayed, by trusting the assurances 
of Congress, was discovered in 1778, when King and 
Parliament tendered to the colonies such a redress of 
grievances as was demanded by the colonial or state 
legislatures, and by Congress. At the same time the 
military convention with France was made public. 
These acts coming together exposed the designs of 
the Revolutionary party, of Congress and of the 
Commander-in-Chief. Arnold published a vindica- 
tion of his conduct, and it is but fair, in a work which 
awards justice to all, to allow the great offender to 
speak for himself : " He originally took up arms be- 
cause he really believed the rights of his country 
endangered ; and although he thought the Declaration 
of Independence precipitate, yet, by many plausible 
arguments in its favour, he was led to acquiesce in it, as 
a measure to ensure and hasten a redress of grievances. 
But the rejection of the overtures made by Great 
Britain in 1778, coupled with the military alliance 
with France, had opened his eyes to the ambitious 
views of those who would sacrifice the happiness of 
their country to their own aggrandizement, and had 
made him a confirmed loyalist." 1 There is a copy of 
Arnold's address to be found in the National Library 
which I have not seen. 

1 Marshall's "Life of Washington," vol. iv. p. 287, First Edition. 



68 The Republic as 

Deceived by a political party with which he had 
allied himself, Benedict Arnold determined to with 
draw from a cause discredited by deception, and return 
to the allegiance of his King. But he joined a justi- 
fiable act with one which has covered his name with 
merited infamy, the memory of which is graven deeper 
because of its connection with the cruel fate of Major 
John Andre. 1 American historians would further 
blacken the name of the traitor by accusations of 
extortion and peculation, whilst he was in command 
at Philadelphia, but which have not the appearance of 
probability. General Arnold had made himself ob- 
noxious to the Governor of Pennsylvania, and certain 
citizens of influence who resided in Philadelphia, in 
the exercise of his authority as commandant of that 
military post. In consequence charges were preferred 
against him by the Governor to Congress, and the 
General-in-Chief was ousted of a legitimate jurisdic- 
tion over a military subordinate. The accused officer 
was arraigned before a court-martial, and, after a 
tedious delay of a twelvemonth, was sentenced to 
receive a reprimand from General Washington ; surely 
not a victory to the accuser when the enormity of the 
charge is considered. And such appears to have been 
the judgment of the General, the army, and the 
public, as well as of some of the most respectable 
characters in Congress. But the Republic required 
General Arnold's courage and talents in the war, and, 
although suffering from wounds received at Saratoga 
and Quebec, he was chosen by his military chief to 
command the left of his army in the projected advance 
on New York. But disabled for active duty,' Arnold 
was placed in command at West Point, the strong- 
hold on Hudson River, an important post suited to 

1 In a letter to Miss Schuyler, Hamilton states Andre's case 
— one hero lamenting the fate of another. See "Life of Hamil- 
ton," by his son. 






a form of Government. 69 

the distinguished merit of the invalid officer, not one 
disgraced by peculation, or the suspicion of it. For 
that command he was recommended by General 
Schuyler of New York, as well as by Livingston, a 
leading congressman from that state ; a satisfactory 
answer, it would appear, to the charge that the treason 
was produced by the result of a political court-martial 
and embarrassed finances. The explanation of General 
Arnold's conduct is different, and it concerns the in- 
telligence and impartiality of history that it should 
be given in this place. He was caught in the toils 
of a casuist, and conceived himself to be justified in 
betraying a commander who, as the leader of a poli- 
tical party, had deceived the country, the army, and 
himself. Arnold's intelligence should have saved him 
from the meshes of that error, and have taught him 
that treachery to a military trust, under whatever 
provocations, is inexcusable, and that it is only the 
successful perfidy of the politician which is con- 
doned and rewarded with the heaven-kissing monu- 
ment. 1 

1 The apology for the adoption of the Declaration of Inde- 
pendence, without the consent of the constituents of Congress, 
was that it formed but a part of a connected plan for obtaining 
a redress of grievances, and that is the only defence to be 
made of the Act. The exertions which Congress and General 
Washington made to prevent the British proposals from being 
publicly circulated, and their efforts, through the press, to 
neutralize them, where that object could not be attained, afford, 
if they stood alone, the greatest probability to the opinion that 
the colonists in the outset were strongly opposed to the severance 
of the British connection, and continued to be so. The account 
which Marshall gives of those transactions operates to confirm 
belief in Arnold's statement, and that the revolutionary leaders 
distrusted the people, if left free to act on that question. Here 
is what the Chief Justice says when he writes of this period of 
his history : 

" After the repetition of several motions, on the part of the 
Opposition, tending to the abandonment of the American War, 
Lord North gave notice in the House of Commons that he had 
digested a plan of reconciliation which he designed shortly to 



jo The Republic as 

When we examine the text of the constitution of 
the Confederation, we are struck by the fact that it 
was but an unskilul attempt to place the states in 
the same relation to the government of the Union 
as that in which they claimed to have stood, consti- 
tutionally, to the British throne ; for such extreme 
partisans as Jefferson and the youthful Hamilton 
contended that the jurisdiction which the Parliament 
asserted over the colonies, was a relic of the Parlia- 



lay before the House. In conformity with this notice, he moved 
for leave to bring in Q First, a Bill for removing all doubts and 
apprehensions concerning taxation by the Parliament of Great 
Britain in any of the colonies and plantations of North America ; 
second, a Bill to enable His Majesty to appoint commissioners 
with sufficient powers to treat, consult, and agree upon the means 
of quieting the disorders now subsisting in certain of the colonies 
of North America.' " Such were the captions of the two Bills 
which contained, in the amplest form, every concession that had 
been demanded by the colonies as a condition of a renewal of 
their friendly relations with the British Empire. These Bills, 
even before their passage through Parliament, were hurried oft 
to America so as to anticipate the arrival of the French Treaty. 
Marshall continues his narrative : " General Washington had 
very early intelligence of their arrival, and entertained very 
serious fears of their operation. The disaffected in many parts 
of the United States already were very numerous, and he was 
extremely apprehensive that the publication of any proposition 
which would restore peace, and that too on the terms originally 
required by America, would greatly increase their number. He 
feared that so many would be disposed to abandon the struggle 
for independence ; and, for the sake of present ease and safety, 
would be ready to renew their ancient connection with Great 
Britain, modified according to the wishes of America previous to 
the war, as to increase very much the difficulties of continuing 
the contest, and render its issue extremely doubtful. He imme- 
diately forwarded the Bills to Congress in a letter strongly 
expressive of his fears, and suggesting the policy of preventing, 
by all possible means, and especially through the medium of the 
press, the malignant influence they were calculated to have on 
the public mind." One of Arnold's capital complaints was that 
the British proposals were not submitted to the people in their 
state legislatures, instead of being considered, and rejected, by 
Congress sitting in secret session. 



a form of Government. 71 

mentary ascendency, and contrary to the true principle 
of the British Constitution. 1 

Accordingly upon the state assemblies were de- 
volved the mass of the political powers, together 
with the old royal jurisdiction of regulating trade. 2 

All Federal power, at least so much as state jealousy 
would part with, was confided to a Congress which 
consisted of one chamber, composed of delegates 
elected by the assemblies, which, with its limited 
jurisdiction, resembled a congress of ambassadors. 
No judicial authority was conferred on the Confedera- 
tion, whilst that of an executive nature was exercised, 
at first, by committees or boards, appointed by Con- 
gress, but later by a Secretary of Foreign Affairs, a 
Superintendent of Finance, a Secretary of War, and a 
Secretary of Marine. These officers were chosen by 
Congress, and were removable at the pleasure of the 
appointing power. The change in the executive 
organization was proposed and advocated by the 
enterprizing genius of Hamilton, and Madison has 
preserved the debate in regard to it. Thus from the 
Articles of Confederation a parliamentary government 
was evolved, a form of republican liberty unadul- 
terated with any foreign element, as Congress claimed 
with satisfaction in one of its communications to the 
states. This fact, amid reproaches which it became 
fashionable to heap upon the Confederation, has not 
been adverted to before, but it is important to be 
taken notice of here when we are engaged in tracing 
to their sources the principles of the Republic. It 
ought to be borne in mind by every British subject 
who loves his country and values the stability of its 
government, that the party of self-government and 
liberty in the United States, when searching for a 

1 Hamilton's " Westchester Farmer" ; Jefferson's " Notes on 
Virginia." 

1 Hallam's " Constitutional History of England." 



J2 The Republic as 

republican model, discovered it in the government 
of England deprived of the House of Peers, the 
executive administration being already usurped by 
the House of Commons through a responsible ministry, 
an act which converted the monarchy of England intc 
a democratic republic, with the vices inherent in the 
system. 

The object of the Federal agency was to preserve 
order and justice among the states, and protect them 
from external attack. Congress, accordingly, was 
provided with the powers of war and peace, and with 
the consequential authorities of supporting armies and 
navies and negotiating treaties. Every other Federal 
jurisdiction was ancillary to these objects. The taxing 
power, so indispensable to the existence of a nation, 
and yet so delicate in every mode of entrusted autho- 
rity, was retained by the states, but Congress was 
authorized to make requisitions upon the legislatures 
for supplies, as the Crown, during the French war, had 
made upon the colonial assemblies, and at one time 
made on an Irish parliament. The eighth article of 
the Confederation provided, in these words, for that 
important power : " All charges of war and all other 
expenses which shall be incurred for the common 
defence and general welfare, and allowed by the 
United States in Congress assembled, shall be de- 
frayed out of the common treasury which shall be 
supplied by the states in proportion to the value of the 
land within each state granted and surveyed to any 
person as such land and buildings and improvements 
thereon shall be estimated according to such mode as 
the United States in Congress assembled shall from time 
to time direct and appoint. The taxes for that pur- 
pose shall be laid and levied by the authorities of the 
legislatures of the several states within the time agreed 
upon by the United States in Congress assembled." 
The delegates in Congress were appointed annually 
by the legislatures, and were paid by them, whilst the 



a for w of Government. 73 

further power was reserved to recall them and substi- 
tute other delegates. As a branch of the taxing power 
each legislature exercised exclusive jurisdiction over 
the custom-house. 

It is obvious that, however sound in principle, and 
perfect in joinery, the constitution might be, its suc- 
>ful action would depend upon the fidelity with 
which the states contributed their quotas of revenue. 
It was upon that ground that the Confederation broke 
down. The inclination of the legislatures has been 
impeached by Madison, but upon no just ground. 
The temporary poverty of the tax-payer, produced by 
an evident cause, was the reason of the noncom- 
pliance of the states, and this is the testimony of the 
most trustworthy authorities. 1 The states possessed 
adequate physical power, and adequate sources of 
taxable wealth, to comply with all the obligations of 
a national government under an ordinary condition, 
and the cause of so great embarrassment, amid such 
abundance, is a striking fact which we discover in 
those times. It produced all the schemes of national 
reform which resulted in a constitutional revolution 
by agencies which will be pointed out. 

As long as the paper currency, emitted by Congress, 
answered for a circulating medium, the war was sup- 
ported by it, but, when it lost value, the war was 
brought to a successful issue by aids and loans and such 
other shifts as Congress could devise. It was supposed 
that with peace the ability of the tax-payer would be 
restored. But, instead of the imagined free trade with 
the mother country, the false hope with which the 
revolution was begun and was prosecuted, a war of 
imposts was declared against the export trade of the 
new Republic by the British government, under the 
belief that the public distress thereby created would 

1 See the speeches of Henry and others in the Virginia Con- 
vention of Ratification (Elliot's Debates). 



74 The Republic as 

compel the states to renew the old connection with 
the Empire. But this proved to be an error in the 
advisers who encouraged the vindictive temper of the 
British King. The burdens imposed by the policy of 
other powers were equally vexatious and injurious, 
and it seemed that all Europe was banded against the 
trade of the Republic of the New World. Productions 
of agriculture sank rapidly and continuously in value, 
and it was discovered that a free people would not 
distress themselves by the payment of taxes to sus- 
tain the public credit. This condition of the national 
fisc aroused the spirit of Federal amendment. 

The debt of the United States on the first day of 
January, 1783, amounted to forty millions of dollars, 
and was distributed among four classes of creditors. 
The first in dignity and obligation, the Congress 
thought, was the debt to France, whom Congress de- 
scribed as " an ally who, to the exertion of his arms 
in the support of our cause, has added the succours oi 
his treasury ; who, to important loans, had added 
liberal donations, and whose loans themselves carry 
the impression of his magnanimity and friendship. >, 
The second class was composed of creditors who lived 
in Holland and France ; and the third class of home 
creditors, from whom property had been distrained or 
loans obtained. The fourth class were the soldiers, 
the most clamorous, and the most deserving, if we 
accept their own estimate of merit, and they threatened 
force unless their demands were complied with by a 
bankrupt treasury. The solicitations and representa- 
tions of John Adams, an envoy of Congress, had pro- 
cured a further loan from Dutch bankers, out of which 
the interest on the foreign debt had been paid ; but, 
when expended, the United States possessed no 
means of replacing it; whilst, under the limitation of 
the creditor's compact, the first installment of the prin- 
cipal of the debt would be due the succeeding year. 
The domestic debt, under that financial pressure, had 



a form of Government. 75 

sunk to a tenth of its nominal value. From Novem- 
ber 1st, 1784, to January 1st, 1786, the requisitions 
paid by the states into the treasury of Congress, 
amounted to only 182,097 dollars, a gloomy outlook, 
in the beginning of a political life, for a superintendent 
of finance. But the energy of the young Republic 
rose as troubles gathered around it. Men of the first 
distinction, in civil and military life, obtained seats 
in the Congress of 1783, to aid, by their influence and 
talent, in sustaining a Republican government that 
had been established in the New World by the policy 
and arms of the most despotic throne in Europe. 

The committee of Congress, to whom had been 
referred the subject of Federal finance, reported on the 
7th of March, 1783, a plan of liquidation which re- 
quired permanent funds to be vested in Congress by 
the states adequate to the immediate payment of the 
interest of the national debt, and the gradual liquida- 
tion of the principal. The funds were to be raised 
by duties collected on imported articles, suplemented 
by internal taxes. In addition, the committee's report 
proposed a change in the rule by which the proportion 
of the taxes, collected from the different states, or 
rather from the two sections of states, was to be 
ascertained, and that population should become the 
measure of contribution, instead of the land valuation, 
as provided by the Articles of Federation. Then first 
appeared in American politics the Federal number, 
its object being to distribute equally the burden of 
taxation between North section and South section. 
The difficulty to be solved was, in what proportion to 
the white population negro slaves should be rated. 
Various propositions had been advocated, when 
Madison, according to his own report, happily sug- 
gested as an equal measure that five slaves should be 
counted as three freemen. This was accepted as com- 
promise ground. That scheme of finance involved 
alterations in the organic law, and began the agitation 



76 The Republic as 

for constitutional amendment. It embraced the follow- 
ing objects : first, the grant by the states to Congress 
of a power to levy for a term of twenty-five years cer- 
tain specific rates of duty on enumerated articles of 
general consumption, brought from abroad, and upon 
all other imports an uniform duty of five per cent, ad 
valorem. The product of such duties was to be set 
apart to pay the interest and principal of the war 
debt. But, as it was computed that their proceeds 
would still leave a million and a half of the annual 
interest unpaid, it was provided, in the proposed 
financial plan, that the states should establish, by 
domestic legislation, for twenty-five years, revenues 
to be devoted to the unpaid interest. For the collec- 
tion of both descriptions of revenue, officers were to 
be appointed by the states, but to be responsible to 
Congress, and removable by the Federal authority. 
To aid these funds the states were invited to relin- 
quish to the general government all claim to unappro- 
priated lands. Finally, as the rule for the apportion- 
ment of Federal taxes according to a land valuation, 
as directed by the eighth article, was difficult, and un- 
certain in its execution, it was proposed, in lieu of 
that provision, to insert one which provided for a 
periodical census of the Union, and a distribution of 
taxation among the states according to population, 
counting five slaves — as Madison had proposed — as 
equivalent to three freemen. Thus was the over- 
populousness of the South section to be provided for, 
and an equilibrium of taxation produced between the 
sections. But there was another provision in the com- 
mittee's report which, after debate, Congress did not 
change, but from which it was compelled very pre- 
cipitately to retreat, as no state would accept the pro- 
position of finance clogged with that condition. The 
objectionable clause was in these words : "That none 
of the preceeding resolutions shall take effect until all 
shall be acceded to by every state ; after which acces- 



a farm of Government. 77 

sion, however, they shall be considered as a mutual 
compact among the states, and shall be irrevocable by 
any one or more of them without the concurrence of 
the whole, or of a majority of the United States in 
Congress assembled." This proposition of finance, in 
all of its parts, was referred to the legislatures, accom- 
panied by another committee's report, urging its ac- 
ceptance as necessary to preserve the Federal credit, 
and impart efficiency and stability to the Union. A 
patriotic address from the classic pen of James Madison 
was not the only persuasive influence brought to bear 
on the public conscience. General Washington was a 
formidable piece of ordnance which, after peace had 
been restored, the Fedralist leaders reserved for great 
occasions. That peerless character was about to 
relinquish command of the army of the Union, and 
was getting ready to celebrate that important event 
by a circular letter to the governors of the states. 
The politicians in Congress induced General Washing- 
ton to engraft on that address to the governors a 
recommendation to the legislatures of the propositions 
of finance submitted by Congress to the states, under 
the belief that a joyful and speedy acceptance of them 
would, in that way, be secured. In tedious detail the 
circular is spread on Marshall's historic page. It 
must have been a mortifying circumstance to a vic- 
torious general that his elaborate address should have 
produced no result, although, by request of the writer, 
it had been laid by the governors before each legis- 
lature. The Federalists, a disciplined corps of admirers, 
received it with hosannas, but the thunder-gun rever- 
brated over mountain and vale until its echoes died 
softly away. The assemblies contained statesmen 
not unacquainted with the influences which prevailed 
with General Washington, whilst they considered 
themselves qualified to judge problems of finance as 
wisely as the planter of Mount Vernon, or his promp- 
ters and advisers. 



78 The Republic as 

Congress discovered that the feature, so ingeniously 
contrived, which made the scheme of finance to inter- 
lock and dovetail and be not separable into parts by 
the ratifying power, and which gave it the force of a 
constitutional amendment, had proved fatal to it. 
They promptly receded, and besought the legislatures 
at least to yield the impost of five per cent, ad valorem. 
The Assembly of New York had annexed to the grant 
of the impost conditions which operated to defeat or 
greatly impair the value of the concession, and Go- 
vernor Clinton, on frivolous grounds, as appears, 
refused to convoke the Houses that the proposition 
might be re-considered, and so the impost, requiring 
a unanimous grant by the states, was lost. But the 
inability of the legislatures to comply with the de- 
mands for revenue was produced by a cause, to remove 
which called for another grant of Federal power. In 
consequence of the war of imposts waged by foreign 
tariffs on the export trade of the states — in intention 
by England, in effect by the rest of Europe — the legis- 
latures, but without concert, adopted a policy of com- 
mercial retaliation. This, in some of the leading 
states, aggravated the evil, for their import trade 
deserted harbours fenced about by prohibitions and 
high duties, and sought ports where it was received 
on more hospitable terms. Virginia, still controlled 
by the party which had seized the government when 
the burgesses were so rashly dissolved by Governor 
Dunmore, had led the way in retaliation, and had in- 
flicted on her foreign trade deep wounds which no 
balsam has been able to heal. The trade of Norfolk, 
standing on the deepest and most capacious harbour 
on the Atlantic coast, was attracted to Baltimore, at 
the northern extremity of the great bay on which both 
cities were situated, or was expelled to Philadelphia, 
whilst that of Alexandria-on-Potomac was received 
by Georgetown, on the soil of Maryland, seven miles 
higher up on that stream. On December ioth, 1783, 



a form of Government. 79 

Madison writes to Jefferson that Virginia, " in com- 
merce, was a dependent on Baltimore and Philadelphia, 
and, judging by a comparison of prices there and in 
Europe, did not pay less to them than thirty or forty 
per cent, on the exports and imports — a tribute which, 
if paid into the treasury of the states, would yield a 
surplus above all its wants." There could not be a 
more instructive commentary on the self-governing 
system of America. In this way commonwealths are 
crippled by statesmen who do not understand the 
business which they undertake, but who make the 
solid interests of the people subservient to their own 
wild and reckless schemes, or prurient notions. Under 
the former system of commerce that grievance could 
not have been produced, as, by a fundamental policy 
of the Crown, each colony was provided with a direct 
intercourse with Great Britain, and one colony was 
prohibited from trading through the ports of another ; 
a wise provision, but one which Howison, in his agree- 
able and instructive history of Virginia, enumerates 
among American wrongs, appearing to forget that to 
that policy it was due that such enormous injuries as 
that of which Madison complains were not inflicted 
upon the people as long as their country was attached 
to the British throne. Before disaffected and ambi- 
tious patriots make revolutions, it would be well if 
they would more deeply consider the advantages re- 
sulting from the system which they desire to supplant. 
Had Washington been content to remain an undis- 
tinguished burgess, representing Fairfax county, and 
had not wearied of that obscure but useful life, if 
ambition had not unbalanced his strong judgment, 
Virginia, sitting in the shadow of her blue flag, would 
now be classed with the great powers, and her fleets 
would plough the ocean with bruised prows, visiting, 
it might be, the distant Orient in search of the produc- 
tions of commerce, or bearing to remote seas the 
thunderbolts of war. The losses and inconveniences 



80 The Republic as 

of which Virginia complained were shared by the other 
states of the Union, and, to produce uniformity in their 
trade regulations, Congress recommended the legisla- 
tures to create a Federal jurisdiction over the import 
trade. But neither argument nor persuasion could 
induce the states to make that surrender of power. 
Washington, in the refusal, impatiently beheld only 
local jealousy ; but, as experience afterwards abun- 
dantly showed, the reluctance of the states was dictated 
by a forethought beyond the reach of his sagacity. 
The states said their present experience demonstrated 
that the trade of a nation embraced every source of 
its prosperity, and warned them in the most solemn 
manner not to part with the final control of it. It 
might come to pass, they said, — a contingency to which 
Washington did not look, — that Congress, dominated 
by a selfish or sectional majority, might not be an 
impartial arbiter among the rival interests of the states, 
and might refuse, or neglect, to foster the foreign in- 
terests of a weaker section or state. Against active 
wrong there was always the remedy of force, but where 
could be found the remedy under such a government 
against neglect ? Some public men, like Elbridge 
Gerry, discoursed in that vein. 1 They considered the 
interests of to-morrow, as well as the cares of to-day, 
to be objects worthy of the statesman's attention, 
although Doctor Franklin, the teacher of industry and 
individual thrift, was inculcating upon a young nation 
that " one to-day is worth two to-morrows." 2 

Then came distinctly into view the memorable States- 
rights and Federalist parties, whose prolonged and 
embittered controversy, in our day, has deluged the 
country in blood, a calamity which ought to instruct 
mankind in the nature of a government of parties — 

1 I refer to a letter of Gerry of this period, to be found in the 
" Life of Hamilton," by his son. He was a wary statesman. 

2 See Doctor Franklin's "Almanac of Poor Richard," where 
this apothegm is found. 



a form of Government. 8 1 

hostile camps which, under the abused name of liberty, 
distract, divide, and ultimately enslave a nation to the 
military power. Public misfortune is a keen spur to 
thought and action, and some expedient was called 
for to relieve an oppressed commerce. As their mode 
of relief, the States-rights party proposed that the legis- 
latures should delegate commissioners to a convention 
which should digest an Act to be added to the con- 
stitution which should provide for every interest. By 
such means it was expected uniformity of regulation 
would be obtained and the injuries of foreign tariffs 
redressed or avenged. A material point in the policy 
of the party, which patronized the autonomy of the 
states, was that the proposed cession of jurisdiction 
should be defined in object, and limited in duration. 
Fifteen years, the period of the treaties of commerce, 
was proposed as the term beyond which a commercial 
grant of Federal power was not to extend. So warily 
did that party approach a surrender of jurisdiction 
which concerned every material interest, and might 
determine whether a state should enjoy the prosperity 
to which its natural advantages entitled it, or become 
a withered and shrunken limb of the Confederacy, such 
as Virginia afterwards was made. 

A political party is an important factor in a free 
state, and its principles are a public concern. It is, 
therefore, always a centre of historical interest. The 
political idea of the States-rights party, with reference 
to repairing and perfecting the constitution, was stated 
with eloquence and clearness by Colonel Henry and 
Colonel Grayson at a period somewhat later than the 
one of which I am writing. Those chieftains of popu- 
larity, with Mason of Gunston Hall, and Lee of West- 
moreland, led that new organization in Virginia, and 
laid its foundations so deep and broad that its dominion, 
with slight reverses, has remained unshaken to this 
day. Those orators thus stated the principle of their 
party : M The only safe course, in a concern of so great 

G 



82 The Republic as 

moment, is, from time to time, to correct defects in the 
grants of power as they make their appearance, taking 
care as you give power to provide safeguards against 
abuse. In that way the government, gradually deve- 
loped and adapted to the wants of a Federal com- 
munity, would, in process of time, attain a high degree 
of perfection. Too much suspicion may be corrected. 
If you give too little power to-day you may give more 
to-morrow, but the reverse of the proposition will not 
hold. If you give too much power to-day you cannot 
take it back to-morrow ; to-morrow will never come 
for that purpose. If you have the fate of other nations 
you will not see it. It is easier to supply deficiencies 
of power than take back excess of power. Keep on 
so, until the American character is marked with some 
certain features. We are too young yet to know what 
w r e are fit for. The continual migration of people from 
Europe, and the settlement of new countries on our 
western frontiers, are strong arguments against making 
experiments in government. Remember the advice of 
Montesquieu : Consider whether the government is 
suitable to the genius of the people." 

This reads very like a discourse in one of the schools 
of Utopia. In accordance with that cautious and dila- 
tory mode of amendment, it was agreed in Virginia 
and the other states that delegates should be sent to 
a commercial conference, such as assembled at An- 
napolis. But time is an essential ingredient in human 
affairs, and the gradual process by which continents 
and globes are constructed, it was not given to the 
States-rights party to imitate in developing a consti- 
tutional system. Meanwhile another revolution had 
been conceived, and set on foot, and would not stay 
its impetuous course. Events are imbued with a 
certain momentum which will not be arrested. If the 
right thing, from any cause of backwardness, is not 
enacted, the wrong thing will get itself done. Thus it 
occurred when the builders were laying a new keel in 



a form of Government. 8 3 

1786. Out of commercial disaster and financial 
embarrassment, a new party of Federal reform had 
silently and powerfully formed itself, counting in its 
ranks Washington and others of greatest weight in 
the Union. It was a party that meant business, and 
were not disposed to hesitate in the choice of means, 
that the States-rights leaders might balance the scales 
on a nice poise between the states and the Congress. 
These men had resolved to preserve the Federal 
system from dissolution, and perpetuate the revolu- 
tion which they had made, if it should require a 
despotism to be created at the Federal centre. They 
demanded, in terms which could not be mistaken, 
immediate and effectual reform in the government of 
the Union, and were prepared to throttle any opposing 
scheme of the adversary. The leader of that opinion 
said a convention of the states was necessary to do 
the work, and that the proposition must originate in 
the State Assemblies, not come from Congress. But 
the full extent of the proposed change was not avowed. 
The revolution which they meditated was kept in the 
background until it was ready to be sprung upon the 
country. The Federalist leaders moved boldly, but 
cautiously, towards their object. Indeed, in profession 
they went no further than this : that to a convention 
of the states every proposition of reform should be 
submitted, and an Act of Congress formulated as an 
amendment to the Articles. That was the ground on 
which the Federalist leaders stood before the country, 
in the legislatures, and in Congress — ground cautiously 
but firmly assumed. In explanation and defence of 
their plan of a convocation of the states in convention 
to effect reform, they said Congress, with the govern- 
ment on its hands, could not devote itself to such a 
task, but that a convention, to which every public man 
would be eligible, could speedily and effectually do the 
work. In truth such a convention, by those uncandid 
men, was proposed only as a committee to digest an 



84 The Republic as 

Act to be submitted to Congress, and, if adopted, to be 
referred to the legislatures ; for that party, so cele- 
brated in American history, with the active aid of 
Madison and the ready sanction of Washington, was 
getting ready to play the country false, which very 
soon they did with entire success. In political circles, 
and in public, the arguments and phrases of that 
organization began to be repeated : " We will have a 
convention of the states to amend all ascertained de- 
fects in the constitution. The mode of ratification 
which the Articles require will keep innovation within 
safe bounds, and the state powers, in their full vigour, 
will be secure. There can be, then, no reasonable 
objection to the measure." 

The controlling spirit of the Federal party was 
Alexander Hamilton, born in Nevis, an island of the 
great American Archipelago. On the side of his 
father he was of Scotch origin, and was sprung from 
the Cambuskeith branch of the noble house of Hamil- 
ton. His mother was a Creole of French extraction, 
possessed of grace, of beauty, and intellectual culture. 1 

Thus was mingled in the veins of their son the 
practical vigour of the North with the genius and 
attractiveness of the South. The boy was placed in 
a counting-house to learn commerce. Whilst there 
accident discovered his great mental endowments, and 
he was sent to be educated in New York, where his 
patrons traded. In this way Hamilton was placed on 
the theatre of agitation whilst the controversy waxed 
warm as to the constitutional right of Parliament to 
tax the unrepresented colonies and plantations of the 
Crown. His genius ripened rapidly and vigorously. 
Whilst yet he wore the college gown he contributed 
to the local press articles in defence of colonial rights, 
which compare favourably with the productions of his 
great intellect at a later period. Well born, Nature 

1 " Life of Hamilton," by his son. 



a form of Government. 8 5 

had been prodigal of her favours to this extraordinary 
man. His bust adorns the capitol of the nation which, 
more than any other man, he formed and preserved. 
After the controversy of words had become a war of 
arms, he was appointed to the staff of the general-in- 
chief of the American armies, and now, by the verdict 
of history, occupies the first place in the brilliant com- 
pany who composed Washington's military family 
during the long period of the revolution. With an 
intimate knowledge of his character, the young soldier 
soon established over the opinions of his commander 
an empire which followed him from the field to the 
cabinet, which has left enduring traces on the consti- 
tution and laws, and continued without diminution 
until the two were separated by death. Hamilton 
became a renowned lawyer and statesman in his 
adopted country, and by his contributions to the 
" Federalist " has placed himself with Jefferson as a 
writer. By such a judge as Chancellor Kent he is 
ranked in intellect high above all his cotemporaries, 
and, in the mastery of finance and in the strength and 
range of his thoughts, has been classed by Webster 
with the younger Pitt. Attached to no state, engaged 
to no locality, but eager for all honourable fame, the 
West Indian sought to aggrandize the power and 
glory of the Federal government, the patron and 
master whom he served. But, though he wore its 
livery, the Republic did not deceive his clear vision. 
Its divisions and animosities, with the disasters to 
which they tended, stood revealed to his unclouded 
eye. It was an organization which he accepted as a 
necessity of the times, but he saw, none the less 
clearly, its inadequacy to preserve a social or federal 
body from dissolution and ultimate ruin. Monarchy 
alone, he was persuaded, could perform that difficult 
task, combining wisdom with power, the essential 
forces of God's throne. 

A letter from Hamilton to James Duane, written 



86 The Republic as 

from the camp at Liberty Pole in 1780, when the 
writer was but twenty-three years of age,*is one of the 
most remarkable contributions to the political litera- 
ture of the Union, and exerted a strong influence in 
the direction desired by the writer. In nervous lan- 
guage he states what ought to be the frame of a 
Federal government, with what powers it should be 
intrusted, and expresses the opinion which afterwards 
became a proverb with the Federal party, that, " A 
convention may agree to a constitution, the states 
never will." It was in that letter that he suggested, 
when a Federal constitution is proposed to the states 
for adoption, that it should be advocated by a serial 
paper such as the " Federalist," afterwards became 
vivified by his own magic pen. Hamilton kept faith 
with his idea, and, two years later, General Schuyler, 
whose daughter he had married, submitted to the 
legislature of New York a proposition that the other 
states of the Union should be invited to send deputies 
to a convention to meet those of New York to amend 
the Federal constitution. The style of the composition, 
the ability of the thought, and the authority of the 
son, prove it to have been Hamilton's work. But the 
time was inauspicious, and the unripe fruit fell from 
the bough. Undoubtedly Madison is in error when he 
assigns the parentage of a convention to amend the 
Federal system, to Pelatiah Webster. It was the off- 
spring of Hamilton's far-seeing and vigorous mind ; 
and when the fulness of time had come, he had the 
satisfaction to know that detached amendments had 
ceased to be urged by his party, and that, energetically 
and secretly, they were banded in advocacy of a con- 
vention of the states, — a states-general for America. 

We will look further into the tactics of the great 
cabal, which had been formed for the overthrow of 
the State sovereignties, and the erection, on their 
ruins, of an absorbing central organ, that Virginia, in 
her sorrow and downfall, may estimate to its full ex- 



a form of Government. 8 7 

tent the debt of gratitude which she owes to George 
Washington, and those other deified characters whose 
names she has been taught to syllable not without 
veneration and love. In 1783, in obedience to a pro- 
vision of the Federal constitution, which declared that 
no one should be eligible as a delegate for more than 
three years in any term of six years, Madison was 
compelled to relinquish his seat in Congress. Expelled 
from Federal life by that ungracious decree of the 
Articles, he returned to Orange county, and speedily 
was elected to the House of Delegates of Virginia, 
where he proposed with better success to serve 
Federalism than he had done in Congress. At that 
period Edmund Randolph, if we accept Madison's 
opinion, was the most influential man in Virginia. He 
was the attorney-general of the state, and, in the 
correspondence between those industrious workers 
which preceded the termination of Madison's congres- 
sional term, evidence is found that a resort to the 
state assemblies by the leaders of Federal opinion 
was a policy resolved on by them as the one which 
promised best for the attainment of the proposed con- 
stitutional revolution. Of the date of April, 1783, 
Madison addresses Randolph in these words : " If a 
few enlightened and disinterested members would step 
forward in each legislature to advocate the necessary 
plans, I see with so much force the consideration 
which might be urged, that I am convinced my hopes 
would prevail." The connection at that critical time 
of those able partisans of Federalism, one in the 
legislature, the other in the executive government of 
Virginia, was productive of greatest results, for each 
was a master of political intrigue, — a poison as fatal 
to the Republic as Casca's and Brutus' steel was to 
Rome. In the legislature of 1784, Madison encoun- 
tered men of the greatest reputation, experience, and 
talents to be found in the commonwealth. Each of 
them had been an active partisan of the late revolution 



88 The Republic as 

in government, and had sought those halls to devise 
some remedy or alleviation for the disasters which it 
had brought upon the misguided colonists. It was an 
array that would have rendered illustrious a Roman 
senate when Cicero and Cato were there, or a British 
parliament when Fox and Sheridan thundered from 
the tribune and Burke taught it wisdom. 

Foremost amongst those orators was Patrick Henry, 
who could be Garrick or Burke ; who spoke as Homer 
wrote, and was named by the British, Muse Forest- 
born Demosthenes; but with this great difference, 
excellence was acquired by the Greek with infinite 
labour, whilst it came to the other as the song to the 
nightingale. In those puissant ranks was William 
Grayson of Prince William county, a colonel in 
Washington's army, a member of Congress, and a 
great light in those days. He died a Federal senator 
as soon as the new era had set in, and so is but little 
known or remembered in these later days. His fame 
belongs to the inter-lunar period of Virginian history. 
There, too, might be found Charles Lee, a representative 
from Fauquier county, and uncle to General Robert 
E. Lee, habitually a member of the legislature, a 
lawyer of great ability and reputation, and afterwards 
was Washington's attorney-general, along with his 
cousin Richard Henry Lee from Westmoreland county, 
the silver-tongued, whom scholars called the Virginian 
Cicero. Spencer Roane, and St. George Tucker, too, 
were members of the body, and both afterwards were 
judges of the Supreme Court of Appeals. Tucker, in 
those bustling times, had come from the Bermudas, 
had cast himself into the rugged arms of the revolu- 
tion, had been educated at William and Mary College, 
and had married a daughter of the Bland family — 
Mrs. Randolph, — who, in the perfection of a match- 
less beauty, was the mother of John Randolph of 
Roanoke. 

He, too, had come to doctor invalid Virginia, sickened 



a form of Government. 89 

by the nostrums of the Republic. With commanding 
form, and serene look, John Marshall sat on those 
benches. In after times he was called " the great 
Chief Justice," and is now so distinguished among all 
who who have worn the ermine in that Western world. 
The Federal constitutional jurisprudence is the birth 
of his learning and genius, and, from the depth of his 
understanding and the force of his reasoning, he is 
known among lawyers as "the American Stowell," 
the great Admiralty judge of England nothing under- 
prized by the comparison. There were others in those 
halls not so widely known, silent and vigorous workers, — 
a class in legislative bodies who often contribute more 
to the utility and dispatch of business than the orators 
of whom the world hears so much. In the arena with 
those practiced champions of debate Madison was 
now flung. He was the son of a wealthy planter of 
Orange county, who had indulged all the inclinations 
of his son's studious nature. He had been educated 
at Princeton College, in the state of New Jersey, under 
the supervision of the celebrated Doctor Witherspoon, 
a learned Scotchman, who, escaping from the retired 
walks of learning, had helped to disunite the colonies 
from the parent state, and had served with reputation 
with his distinguished pupil in Congress. Stored with 
modern and ancient lore, the mind of the young states- 
man was trained in the gymnasium of the common 
law. With clear cut and convincing logic, which dis- 
dained every other appeal to the understanding, this 
athlete in debate at once took rank with the foremost 
debaters, and, by subtlest arts, delivered Virginia bound 
hand and foot at the Federal altar of sacrifice. He 
was the co-worker with Hamilton, and, in logical 
ability, was his equal ; but Hamilton's knightly nature 
fought on all fields with the visor up, the midday sun 
streaming on his crest, whilst the other was a veiled 
champion who contended in the much-loved twilight. 
One might be Caesar, in his scarlet robe, courting every 






90 The Republic as 

danger of the fight, whilst the other resembled indirect 
and crafty Talleyrand. 1 

In those brave times, Virginia merited the fine eulogy 
of Calhoun. " She is like the mother of the Gracchi/' 
he said ; " when asked for her jewels, she points to her 
sons." Those great men all were born and bred under 
the monarchy, and could not have been nurtured by 
the pimping politics of a republic. By efforts direc 
ted to legitimate objects they had power to have made 
the Cavalier's empire a mighty state in the West, but 
dazzled by the cozener France, they were cursed with 
the satanic virtue of ambition, and so had brought 
ruin on their country. In that dawn and twilight of 
her history, Virginia, half hunter half planter, had her 
bounds in the west and north-west on the Mississippi 
and the Canadian lakes, whilst the great river Ohio, 
from its head-springs to its mouth, flowed mid-way 
through her savage domain. With an admiralty 
jurisdiction she went abroad on the high seas, and 
every breeze courted the blue flag. She had invited 
the states, engaged in union with her, to confer with 
respect to combined action for the liberation of their 
ocean commerce, that she might become a great mari- 
time power, to which her ocean front, indented with 
harbours and bays, and intersected by deep and broad 
rivers, loudly called her. If she had kept clear of the 
ill-starred union with North section, or even then had 
broken from it by an annual pageant on the Chesa- 
peake, her own Adriatic, she might have celebrated a 
mysterious marriage with the sea, whilst great fleets 
would have proceeded from her headlands to bring 
back the spoils of commerce to enrich and adorn 
many-hilled Richmond ; and no Northern soldier, ex- 
cept as a prisoner of war, would have set foot on her 
sacred soil. But the politician, with the garb of the 
sansculotte and the vices of the hustings, mounted the 

1 Froude's " Life of Caesar." 



a form of Government* 9 1 

vacant throne of King George, and the bright vision 
of empire melted into air. After one hundred years 
of the Republic behold Virginia now with contracted 
boundaries, — having scarce standing room for her 
capitol, — plundered, beggared, conquered, and grinding 
in the mill of a task-master. 

* 4 Oh change, beyond report, thought, or belief !" 

At first, as we remember, the politicians had flocked 
to Congress, but experiment taught them that was not 
the direction from which governmental reform must 
come. Quickly, and in concert, those intelligent and 
disciplined opponents of the states turned to the legis- 
latures, and Virginia, with her leadership and her 
patronage of states rights, was selected as the point of 
attack. Richmond became the centre of Federal 
cabal. From 1784 to 1787, when the plot ripened 
into success, we find Madison in the House of Dele- 
gates, working for Hamilton's convention of the states 
as his ulterior object. He was the most complaisant 
and industrious of members, ready to help any man 
in his business, but keeping steadily in view that 
object — as Rives, his biographer and friend, frankly 
admits — " to enlist the co-operation of his younger 
and abler associates in those objects of highest im- 
portance to the state and the Confederacy." Every 
interest found in him a ready and practical advocate. 
He was placed on the leading committees, and con- 
trived to be made chairman of the committee on 
commerce, which would connect him immediately 
and constantly with the subject of Federal amend- 
ment. The jurisdiction of that committee was thus 
defined bylaw : "To take into consideration all matters 
and things relating to the trade, manufactures, and 
commerce of the commonwealth, to report the pro- 
ceedings thereon to the House, and to recommend 
such improvements as, in their judgment, may be 
made therein." It was arranged between the two that 



92 The Republic as 

Edmund Randolph, the courted and influential ally, 
should unite with Madison in the legislature ; but this 
purpose was thwarted. Still, they were active partners 
in the cause of Federalism. Madison, though but the 
deputy of a man not visible in those scenes, was the 
controlling mind, bending and guiding the flexible 
attorney-general. John Randolph, of Roanoke, who 
could interpret the mystic characters of human nature, 
has informed us that " Madison was the kept mistress 
of Hamilton/' Behold, then, the creature of another 
man in the Assembly of Virginia, spider-like, involved 
in the labyrinth of his politics, working and conniving 
to undermine the state powers that he might build a 
throne for a Federal master, and for Virginia a con- 
queror. Great men often display their superiority by 
the exploits of their underlings. A West Indian, whose 
native home is not visible on a map of the world, is 
seen directing the councils of a great commonwealth. 
The light bark, which wafted the young clerk from his 
island home to the great continent beyond, carried 
Caesar and his fortunes. 

It had been arranged among the States-rights men 
of the Union, as has been noted, that a commercial 
convention should be called, Virginia, of course to be 
in the van, and Tyler, a leader, was intrusted with the 
responsible duty of introducing a Bill in the legislature 
for that purpose. It was proposed towards the end of 
the session, and adopted without opposition ; the 
Federalists, who were opposed to the policy of the 
Bill, voting for it. It stated that the purpose of such a 
convention was to consider how far an uniform system 
in commercial regulations of the states may be neces- 
sary for their interests and permanent harmony ; and 
to report to the several states such an Act relative to 
that great object, as, when unanimously ratified by 
them, will enable the United States in Congress effec- 
tually to provide for the same. The grant to Congress 
of the five per cent, duty on trade, which was the 



a form of Government. 93 

Federalist proposition, had been defeated at that 
session, and this substitute was offered by the States 
Rights party operating on their line of action. We 
have here set before us the attitude of those belliger- 
ents on the theatre which they had chosen for their 
final conflict. We will now observe the insincere 
tactics of the Federal party in the legislature, under 
the able generalship of Madison, and learn how defeat, 
by skilful tactics, in politics as in war, may be turned 
into victory. There was not a missing nor a dissent- 
ing vote among the Federalists for the proposition of 
the States Rights party, their leader throwing his 
whole weight for the Bill. With an affected zeal for 
its success they insisted upon being intrusted with it, 
and were intrusted with it. But it was the cruel solici- 
tude of the step-mother, who harboured the treacher- 
ous purpose to strangle the nursling committed to her 
care ; for in his account of that transaction, Madison, 
with the frankness of an octogenarian, acknowledges 
that his party accepted Tyler's Bill as a stepping-stone 
to Hamilton's convention of the states, 1 or " to some- 
thing better," as he expresses it. Five commissioners 
were appointed by the Bill, any three of whom were 
authorized by it to represent the state in the proposed 
conference of delegates, if a fuller attendance could 
not be obtained. Three of the commissioners attended 
at Annapolis, two were the Attorney-General and 
Madison, the third man was St. George Tucker. The 
mover in the business, and presumably the head man, 
was left out of the roll of delegates, a fact which indi- 
cated that the commercial convention had passed into 
the hands of its enemies. We see in this example 
something of the modes in which legislative bodies 
may be managed in a model Republic, and how " affairs 
of great pith and moment go awry, and lose the name 
of action." At this time, fortunately for the project of 

1 Introduction to the Debates of 1787. 



94 The Republic as 

a commercial convention, it happened that the com- 
missioners who had been appointed by Virginia and 
Maryland to ascertain and establish their boundaries 
on the Pocomoke and Potomac rivers, had recom- 
mended to the legislature uniformity of regulation in 
respect to the foreign trade of the two states. It 
appeared that the concurrence of the states of Dela- 
ware and Pennsylvania, whose rivers flowing south- 
ward emptied their floods into the Chesapeake, would 
also be necessary to complete the efficacy of the 
arrangement. So forcible an illustration of the neces- 
sity of uniformity in trade regulations among the 
states could not but prove favourable to the adoption 
of a measure having that for an object, though in a 
limited degree. The commercial convention was ap- 
pointed to meet at Annapolis, in the state of Maryland, 
the first Monday in September, which was the four- 
teenth day. Delegates from five states only attended, 
Virginia, Delaware, Pennsylvania, New Jersey, and 
New York, and it was urged, by the Federalist leaders, 
that the attendance was " too thin " to justify the con- 
vention in addressing itself to the object of its mission. 
Out of respect to the appointing authorities, and the 
important object of the mission, the convention did 
not adjourn from day to day, as obviously ought to 
have been done, but resolved at once to adjourn finally, 
first adopting a report from Hamilton's pen, alleging 
the reason for the precipitate adjournment, and recom- 
mending to the states, who had sent delegates to 
Annapolis, to take measures to secure a convocation 
of all the states at Philadelphia the 25th day of Sep- 
tember, 1787, 1 just a twelvemonth from that time, to 
revise and amend the Articles of Confederation, 
Hamilton's great point, and for which the Federal 
party persistently, and now successfully, had striven. 

1 This day was changed by the Virginia Act to the second 
Monday of the preceding May, See post, p. 133. 



a form of Government. 95 

From the page of Chief Justice Marshall we learn 
that deputies from the Eastern states were on the road 
to Annapolis, but had delayed their journey to enable 
Hamilton and Madison to adjourn the convention be- 
cause of their non-appearance. Delegates from the 
states to the south of Maryland, and even from Mary- 
land, did not attend the conference of the states as 
Madison suggests, (he must have known it,) because 
they favoured a convention of the states for general 
constitutional reform. It was a widespread and in- 
tricate conspiracy among the head men of the Federal 
party. By such means the measure, originated by the 
States Rights party, was converted to the purposes of 
the Federal party. It is worthy of notice, as confir- 
matory evidence, that the time and the place for calling 
the proposed commercial convention were not fixed 
in the resolution, as adopted by the Virginia legis- 
lature. Those points were left to be arranged by 
the commissioners who had been delegated to the 
commercial convention. What use Attorney-General 
Randolph and Madison made of so unusual a dis- 
cretion to disappoint concerted action among the depu- 
ties cannot now be known, but it is probable that so 
favourable an opportunity was not thrown away by 
two such adepts in political intrigue. It is also worthy 
of notice that the resolution did not provide that the 
invitation to the other states should be sent through 
the Governor of Virginia, an usual mark of courtesy 
and respect in communications between sovereign legis- 
lative bodies, as marking the importance of the occa- 
sion. It was conspicuously true, when the Conven- 
tion of 1787 was called, at the next session of the 
legislature, composed of the same men, and with pro- 
fessedly the same object, that it was particularly pro- 
vided that the invitations to the states were to be sent 
through the Governor of Virginia, and that the time 
and place for the meeting of the convention were 
specified in the resolution — " Philadelphia " and " the 



g6 The Republic as 

second Monday in May, 1787." The leaders of the 
Federal party were careful not to fall into the pit 
which they had digged for the States Rights party; 
and this, after a hundred years of oblivion or miscon- 
ception is the inside of that transaction. Thus the 
Constitution of 1787 was conceived in a criminal fraud, 
begun* in Richmond and consummated at Annapolis. 




CHAPTER V. 

O induce the rump of a States Rights 
Conference such as had convened at An- 
napolis to adjourn, and advise the convo- 
cation of a constitutional convention, was 
discovered to be a task not free from diffi- 
culty. Madison, the contriver of the plot, has informed 
us that, in order to compass that object, it was found 
necessary to employ upon those commissioners the 
extraneous influence of " the most enlightened and 
influential patriots," descriptive language which was 
applied by him to such agents of Federal intrigue. 
From the proximity of Mount Vernon to Annapolis, 
scarce a day's ride on horseback, and the lively interest 
which he took in that transaction, as we learn from 
Marshall, 1 there cannot be a doubt but the language 
points particularly to General Washington. It was a 
critical moment in the fortunes of the Federal power, 
which revolutionary leaders had set in the place of the 
British throne and parliament. Hamilton was on the 
ground with his trusty lieutenants, but the presence of 
Washington was necessary to complete his staff and 
ensure the victory. Federalism represented the glory 

1 See also " Life of Edmund Randolph," by Moncure Daniel 
Conway. 



a form of Government. 9 7 

of Washington. He had shown himself to be ready at 
all times to serve it in every form which it had assumed, 
and he was again at the call of the leaders who had 
taken charge of its fortunes at that crisis of its fate. 
To Virginia Washington was bound by the eternal 
obligation of natural allegiance, but he had breathed 
so long the atmosphere of the Union, and had become 
so impregnated with the opinions and purposes of 
Northern statesmen, that natural patriotism had died 
in his heart. In contemplating the greater interests 
of the whole, he had lost sight of the differing interests 
of a part of the Union. To no other cause can be 
attributed the fatiguing exhortations of his letters, 
addressed to Virginian correspondents, to bury all 
considerations of local policy to secure the grandeur 
of the Union ; nor could he be made to understand 
that Virginia was not under some frightful obligation 
to sacrifice her dearest interests to the grasping 
Puritan, the fetich which the blind Washington 
adored. That new statesmanship of the peerless 
Washington, the father of his country, stood in re- 
markable contrast with his policy in respect to the 
revolution when he would not consent for Virginia to 
pay on the tea, which she did not drink, a threepenny 
duty — the quiddity of which Burke spoke. In his 
correspondence of this period with the Marquis de la 
Fayette, Washington describes himself as " a philan- 
thropist by character and a citizen of the great re- 
public of humanity at large," a picture without doubt 
true, but which disqualified him as a representative of 
the vital concerns of Virginia in a scuffle of conflicting 
interests on the national theatre, which was then being 
prepared for the contention. The leaders of the Federal 
party had proposed to themselves what appeared to be 
the most difficult of all tasks in a government of the 
people, which was to overturn a government that the 
people passionately desired to retain, and supersede 
it with one which they strongly disliked. Yet did 

H 



98 The Republic as 

success reward the efforts of those adventurous cha- 
racters. With a Hamilton to lead and direct, and a 
Washington to follow and obey, there was in their 
lexicon no such word as fail. The first act, or rather 
the prologue, was given at Annapolis when the com- 
mercial convention was massacred with Federal 
daggers, and we will follow the interesting, but pain- 
ful, drama in ;ts succeeding parts. It will prove, if I 
mistake not, an instructive portion of the Republican 
experiment in the New World. It will expose the 
very pulse of the machine. 

After the commercial convention, the obstacle in 
Hamilton's path had been " removed," as Guiteau, 
the assassin, would have expressed it ; the next step 
in the plot was to induce the legislatures to adopt the 
Act which those political gamesters prepared and re- 
commended. Fortunately for the success of the con- 
spiracy against the state powers, it happened that the 
legislature of Virginia was the first to assemble after 
the rump had dispersed. Madison and Randolph 
controlled its action without difficulty, for the down- 
ward current is smooth and powerful. The argument 
that the convention, to be held in Philadelphia, was to 
prepare an Act of Congress and adjourn, silenced every 
objection, for no man presumed to doubt at that period, 
when the Republic was but a bud of promise, it was 
before its efflorescence, that the instruction of the legis- 
latures would be carried into effect. Madison, a master 
of the pen, drafted the Act of the legislature of Virginia. 
By its terms it was a simple power of attorney given 
by the commonwealth to Washington and his co- 
deputies to act for her in the important business of 
Federal amendment, the limits of their action being 
definitely prescribed in the power. That law is the 
record here, and will be submitted to the august moral 
tribunal which hears this case, and to which republics 
as well as despotic sovereigns are amenable — the trial 
by record being, according to the English common law, 



a form of Government. 99 

the most authoritative, as well as the most expeditious, 
mode of ascertaining a judicial truth. By a unanimous 
vote of the legislature the statute was adopted, and its 
body and preamble are given here, as they are found 
in the Madison Papers : 

M Whereas, the commissioners who assembled at 
Annapolis on the 14th day of September last, for the 
purpose of devising and reporting the means of en- 
abling Congress to provide effectually for the com- 
mercial interests of the United States, have reported 
the necessity of extending the revision of the Federal 
system to all its defects ; and have recommended that 
deputies for that purpose be appointed by the several 
legislatures, to meet in convention in the city of Phila- 
delphia on the second Monday of May next, a provi- 
sion which seems to be preferable to a discussion of 
the subject in Congress, where it might be too much 
interrupted by the ordinary business before them, and 
where it would, besides, be deprived of the valuable 
counsel of sundry individuals, who are disqualified 
by the constitutions or laws of particular states, or 
restrained by circumstances, from a seat in that 
assembly. 

u And whereas the general assembly of this com- 
monwealth, taking into view the actual situation of 
the Confederacy, as well as reflecting on the alarming 
representations made from time to time by the United 
States in Congress, particularly in the Act of the 15th 
day of February last, can no longer doubt that the 
crisis is arrived at which the good people of America 
are to decide the solemn question, whether they will, 
by wise and magnanimous efforts, reap the just fruits 
of that independence which they have so gloriously 
acquired, and of that Union which they have cemented 
with so much of their common blood ; or whether, by 
giving way to unmanly jealousies and prejudices, or 
to partial and transitory interests, they will renounce 
the auspicious blessing prepared for them by the revo- 



ioo The Republic as 

lution, and furnish its enemies with eventual triumph 
over those by whose virtue and valour it has been 
accomplished. 

" And whereas the same noble and extended policy, 
and the same fraternal and affectionate sentiments 
which originally determined the citizens of this com- 
monwealth to unite with their brethren of the other 
states in establishing a Federal government, cannot 
but be felt with equal force now, as motives to lay 
aside every inferior consideration, and to concur in 
such further concessions and provisions as may be 
necessary to the same great objects for which that 
government was instituted, and to render the United 
States as happy in peace as they have been glorious 
in war: Be it therefore enacted by the General 
Assembly of Virginia, that seven commissioners be 
appointed by joint ballot of both Houses of Assembly, 
who, or any three of them, are hereby authorized, as 
deputies from this commonwealth, to meet such 
deputies as may be authorized and appointed by other 
states to assemble in convention at Philadelphia, as 
above recommended, and join with them in devising 
and discussing all such alterations and further provi- 
sions as may be necessary to render the Federal 
constitution adequate to the exigences of the Union ; 
and in reporting such an Act for that purpose to the 
United States in Congress, as when agreed to by them, 
and duly confirmed by the several states, will effectually 
provide for the same. And be it further enacted, that 
in case of the death of any of the said deputies, or of 
their declining their appointments, the executive is 
hereby authorized to supply said vacancies ; and the 
governor is requested to transmit forthwith a copy of 
this Act to the United States in Congress, and to the 
executive of each state of the Union." 

This Act passed the two Houses of the Virginian 
Legislature on the 23rd of November, 1786, and 
deputies were appointed on the fourth day of the sue- 



a form of Government. i o I 

ceeding month. The preamble of the Act, the reader 
will observe, explains its object, whilst its body con- 
tains the instructions given to the deputies in respect 
to their action in the projected convention. If the 
law be scanned, the first instruction is discovered to 
concern the extent to which the legislature desired 
constitutional reform to go. That was a capital point, 
to be settled by the principal, not left to the inclina- 
tion of the agent. The second instruction had reference 
to the form which the amendment was to assume, 
namely, " an Act of Congress." The third referred to 
the ratifying body, the state legislature, to which the 
work, when finished, should be submitted. When these 
points are taken together, it appears that the Act 
drawn by Madison was a declaration to the deputies 
of Virginia, and to all to whom it was officially com- 
municated, that Virginia desired the Articles of Con- 
federation to be retained as the government of the 
Union, but some needed powers added. This the 
form of the amendment and the mode of ratification 
clearly proved. The only point in which particular 
instructions were not inserted in the Act was as to 
the new powers. But the repeated solicitations of 
Congress to be intrusted with certain new jurisdictions, 
the action of the legislatures, with the understanding 
of the country, rendered a specification on those points 
unnecessary. The recent history of the country, the 
theme of every tongue and pen, informed every deputy 
on that point. An impost of five per cent, for twenty- 
five years ; a power to regulate the trade of the Unicn 
for fifteen years; a substitution of population for a land 
valuation, as a measure of sectional taxation, and such 
changes as would fit the old work to the new, were the 
only alterations in the Articles deemed by the states 
to be necessary or desirable. The frame of the govern- 
ment had been attacked by no one. It was considered 
as perfect as the situation of the states would allow. 
There was another consideration to which very great 



102 The Republic as 

importance was -attached as restraining innovation, 
namely, the power reserved to each state to veto the 
action of the convention. If we consult the statutes 
of Congress and the reports of committees, or the 
journals of state assemblies, or the contemporaneous 
history of Marshall, or the elegant and copious narra- 
tive of Rives, or any other source of historic truth, 
these propositions contain the full extent to which any 
authorized exponent of the public will, in any of the 
states, desired Federal reform to be carried. All 
reformers proposed to amend the Articles, all desired 
to retain them. 

The word " necessary " found in the Act of Virginia 
requires this limited construction to be put upon that 
law. Grayson, two years later, urged this objection 
with great force to the Constitution of 1787. He 
charged a violation of trust on the Virginia deputies. 
a How," he said, "were the sentiments of the people 
before the meeting of the convention at Philadelphia ? 
They had but one object in view. Their ideas went 
no further than to give the general government the 
five per cent, impost and the regulation of trade. 
When it was agitated in Congress, in committee of 
the whole, this was all it asked, or was deemed neces- 
sary." These were the important subjects of reform; 
other changes were of a subordinate character, and 
considerations rather of convenience. Hamilton's re- 
port, speaking for the Annapolis convention, also 
affords conclusive evidence in respect to this matter : 
" Your commissioners decline an enumeration of those 
national circumstances on which their opinion, re- 
specting the propriety of a future convention, is 
founded ; as it would be a useless intrusion of facts 
and observations, most of which have been frequently 
the subject of public discussion, and none of which 
can have escaped the penetration of those to whom, 
in this instance, they would be addressed." With this 
satisfactory evidence placed before him, the reader 



a form of Government. 1 03 

cannot believe that it was expected that the conven- 
tion, to assemble at Philadelphia, would pass beyond 
those bounds and construct a new government. If 
any doubt could exist as to so plain a proposition 
upon the evidence adduced, it would be removed by 
declarations made in the Federal convention itself, 
when it proceeded to overstep these limits and enter 
the field of constitutional revolution. As soon as it 
was made known that a revolution in government 
was contemplated in the convention, General Charles 
Cotesworth Pinckney, a great man from South Caro- 
lina, objected that neither the Act of Congress 
approving the convention, nor the commissions of 
the deputies (which had been submitted and read to 
the convention), warranted the discussion of a system 
laid in different principles from the existing Con- 
federation. Pinckney was a Federalist, but Gerry, of 
the opposite party, concurred in that opinion, whilst 
Roger Sheridan, of Connecticut, also a Federalist in 
politics, "admitted that additional Federal powers 
were necessary, but he w r as not disposed to make too 
great inroads on the present constitution, as it would 
be inexpedient to lose every amendment by inserting 
such as the states would not agree to." Further on in 
those proceedings, Mr. Patterson, of New Jersey, more 
fully and more energetically spoke to that question. 
Washington was in the chair, become now the pre- 
siding genius of another revolution not less sinister in 
its origin than the first revolution. With warmth and 
force, Mr. Patterson inveighed against the treachery 
of which the convention was being guilty, with the 
abetment of its president, as to us it now appears. Mr. 
Patterson said : " He would premise, however, some 
remarks on the nature, structure, and powers of the 
convention. The convention was formed in pursuance 
of an Act of Congress ; that this Act was restricted 
in several of the commissions, particularly in that of 
Massachusetts, which he required to be read ; that the 



104 The Republic as 

amendment of the Confederacy was the object of all 
the laws and commissions on the subject; that the 
Articles of Confederation w r as the proper basis of all 
the proceedings of the convention ; that we ought to 
keep within those limits, or we would be charged by 
our constituents with usurpation ; that the people of 
America were sharp-sighted and not to be deceived. 
But the commissions under which we acted were not 
the only measure of our power, they were denoted 
also by the sentiments of the states on the subject of 
our deliberations. The idea of a national government, 
as distinguished from a Federal one, never entered the 
mind of any of them ; and to the public we must accom- 
modate ourselves. We have no power to go beyond 
the Federal scheme ; and, if we had, the people are 
not ripe for any other. We must follow the people ; 
the people will not follow us. He was attached 
strongly to the existing Confederation, in which the 
people choose their legislative representatives, and 
the legislatures their federative representatives. New 
Jersey w r ould never confederate on the plan before the 
committee. She would be swallowed up. Mr. Patter- 
son would rather submit to a monarch, to a despot, 
than to such a fate." 

We know then, by evidence the most satisfactory, 
that a limited and specific authority was intrusted to 
the Federal deputies in respect to changes in the 
Articles of Union. We will take a survey of some of 
the greater points in the new system, that all may 
understand the slight regard paid on that occasion to 
the popular wish and to the instructions of the con- 
stituent bodies. The injunction from each legislature, 
and from the Congress to the convention, to embody 
all proposed amendments in an Act to be submitted 
to Congress, and afterwards to the states, as an 
additional article of the constitution, the deputies 
absolutely refused to obey ; but instead, constructed a 
government de novo, not necessary, according to its 



a farm of Government. ro5 

provisions, to be submitted to Congress for its adop- 
tion, nor requiring the unanimous sanction of the 
legislatures. It differed from the Confederation in 
species, as well as in the measure of power awarded 
to it. Instead of a confederation of sovereign states, 
as the first Articles of Union avowedly were, the new 
central power, which was provided for, left the states 
scarce a shadow of their importance. Under the first 
system, the states were the governing authority of the 
land, each moving in its orbit. Under the other, all the 
great powers were handed over to Congress and the 
new created Federal departments. This revolution in 
government had been prepared against the written 
instructions of the appointing powers. It seemed as 
if the legislatures and the people were treated by 
those trusted agents as a blind man, a fair subject for 
deception and sportive tricks. 

When the new charter of Federal power was 
opened, the first change which met the eye was a divi- 
sion of the government into several departments. The 
parliamentary feature had been expunged from the 
constitution, and an executive branch created in the 
person of a president, armed with a veto on legisla- 
tive action for all practical and useful purposes abso- 
lute. With the official patronage annexed to his 
jurisdiction, the executive was the most formidable 
section of the new government. Under the disguise 
of a misnomer, the convention had created an elective 
monarchy; and when Jefferson, in Paris, read the con- 
stitution, he observed, with malicious criticism, "Their 
president is a bad edition of a Polish king." Every 
prudent man foresaw that the quadrennial election of 
such an officer, with an immense official spoil at his 
disposal, would create a government of expectant 
and mercenary factions, whose collisions would ulti- 
mately destroy the government and the liberty 
it was designed to secure. Upon Congress, which 
that surreptitious constitution divided into two cham- 



1 06 The Republic as 

bers, the most exalted jurisdictions were conferred. 
Requisitions, the characteristics of a system in which 
the states are the sovereign parties, had been annulled, 
and the whole taxing power given immediately to Con- 
gress. The constitution declared : " Congress shall have 
power to levy and collect taxes, duties, imports, and 
excises, to pay the debts and provide for the common 
defence and general welfare of the United States." 
In the money power alone a revolution had been 
effected. When this part of the proposed government 
was assailed, the " Federalist," as a dubbed and pano- 
plied knight, rushed to its defence, as to a vulnerable 
part of the fortress w T hich it was charged to defend. 
With the candour of an advocate, it contended that, in 
theory, through the unlimited right to make requi- 
sitions on the states, the Confederation had conferred 
on Congress as unlimited a discretion as to revenue 
as the new constitution had done. But every man 
knew the old system had not worked in that way, and 
was not intended to work in that way, and after ex- 
periment the reverse of that conclusion had been 
found to be true. It was absurd to contend in the 
face of recent history that the power of requisition 
was equivalent to the power of taxation, for when a 
committee proposed, by a constitutional amendment, 
to make a requisition the equivalent of taxation, Con- 
gress declined to ask that authority from the states. 
If a requisition was thought to be too great in amount 
or of doubtful utility, or if the burden of taxation 
which it would necessitate would be inconvenient to 
the tax-payer, the power of refusal had been deposited 
with each legislature, and Congress, with its unlimited 
right of requisition, was remediless. 

The unqualified right to regulate commerce with 
foreign nations, between the states, and with the 
Indian tribes, had been yielded to Congress, — a strong- 
hold that had been defended by the States Rights 
party with persevering valour, and to the retention of 



a form of Government. i o 7 

which the highest importance was attached. It was 
surrendered by a Federal garrison without firing a gun. 
The Sixth Article declared the subordination of the 
states and their character as Federal vassals : u This 
constitution, and the laws made in pursuance thereof, 
and all treaties made, or which shall be made, under 
the authority of the United States, shall be the supreme 
law of the land, and the judges in every state shall be 
bound thereby, anything in the constitution and laws 
of a state to the contrary notwithstanding." To en- 
force that supremacy a supreme court was provided 
in the constitution invested with legal infallibility, to 
which every cause might be carried for adjudication 
which raised a question of constitutional law. That 
sovereign tribunal would be composed of a bench of 
lawyers, who, as politicians, might have obtained their 
places by acts of servility and baseness. The judges 
might be learned and incorrupt, but no security was 
offered to a state against their being of a contrary 
character. A more complete destruction of the au- 
tonomy of the states could not well have been de- 
vised. The rights of the states, which a seven years' 
war had been necessary to establish against a central 
domination abroad, with a stroke of the pen Washing- 
ton had cancelled. The difference was that now the 
master of the states had been brought to dwell among 
them on the western side of the Atlantic Ocean instead 
of being planted in Middlesex on the Thames. 

An important result of the written constitution, as 
developed in the United States under the sway of this 
supreme judicial body, ought not to be passed in 
silence in a work which considers the value of the 
written constitution as an instrument or mode of 
government, and with propriety the examination may 
be made in this place. That court, provided by the 
creating hand with discretionary powers, and thus 
high uplifted above the constitution, is an experiment 
in politics, and was the invention of the adventurous, 



io8 The Republic as 

theorizing, dreaming American fathers. Such a con- 
stitution, regarded as a supreme law, limiting and 
controlling all grants of power as far as it could be 
done, would appear to call for, or admit, a tribunal of 
this kind, though none such was provided in the 
Articles of Confederation, nor the want of it felt or 
complained of, and its working, naturally, is an object 
of curiosity to the reader who would be acquainted 
with the American government as a practical system. 
Europe entrusts all the powers of government with an 
emperor under the responsibility of empire and under 
the strong safeguards of personal and family interests; 
but America, more confiding, hands it over to a bench 
of lawyers obtained from a corps of adventurer party 
politicians. In theory at least the organic law of the 
Republic speaks for itself, and hence the nicety, care, 
and exquisite criticism expended in its organization 
and phraseology. In the most important cases, never- 
theless, the constitution is not permitted to speak for 
itself, the Supreme Court, with its readings and ren- 
derings, being intruded between the people and their 
constitution as absolute expounder of its meaning. 
By this means a wrong or aggressive decision becomes 
an authoritative example, a precedent for succeeding 
courts, and through this door errors and perversions, 
where truth is most necessary, are introduced into the 
state. Personal and property interests are impaled 
(see Poindexter v. Greenhow), whilst the states, which 
are the pillars of the constitution, are curtailed or 
annulled in their constitutional rights, the central 
power, the object to which each judge looks as a 
cynosure, being magnified beyond its due proportions. 
By such brambles and parasitical plants has the con- 
stitution, as ratified by the states in their sovereign 
conventions, been overrun and covered up. Many 
illustrations of this might be culled from the judicial 
history of the Constitution of 1787, but one will suffice, 
as, when the case occurred, the supreme bench was 



a form of Government. 1 09 

occupied by judges of greatest reputation, and the 
waves of party politics ran high indeed, whilst the 
case itself was one of highest dignity and importance. 
I refer to the leading decision of Osborne and others 
against the Bank of the United States, contained in 
the 9th volume of Wheaton's " United States Reports,'' 
p. 738. Here the sovereign state of Ohio, by an act 
of her legislature, imposed a tax (it was charged with 
the intention of driving the bank beyond the limits of 
the state) on the branches of the Bank of the United 
States transacting business within its territory, and 
directed, by a statute, Mr. Osborne, the auditor, to 
have the tax collected on his warrant by a levy on its 
property, and deposited, like other public dues, in the 
treasury of the state. As soon as this command was 
obeyed by a seizure of funds of the branch bank, 
situated at Chillicothe, sufficient to pay the tax, the 
mother bank, organized and empowered by an Act of 
Congress, filed a Bill in Equity in the Circuit Court of 
the United States for the district of Ohio against the 
auditor who had issued the warrant, as well as against 
the agent who had executed it and the treasurer who 
had received the tax, charging all these officials as 
individual trespassers. In bar of a recovery the 
defendants sought to excuse and shelter themselves 
by pleading the statute of the state of Ohio and their 
prescribed duty under it, alleging that their act was 
the act of their sovereign the state, and that the bank, 
if entitled to redress, ought to be directed to proceed 
against the state of Ohio for indemnity and satisfac- 
tion. But a very stubborn obstacle interposed and 
evidently determined the action of the court. The 
eleventh amendment of the constitution, the history 
of which Chancellor Kent gives in his " Commentaries 
on the Constitution," p. 297, directed that a Federal 
court should not take jurisdiction of suits instituted 
by individuals against a state of the Union, thus 
placing a government of a state on the high original 



no The Republic as 

ground on which it had stood, as to this exemption 
from suit, before the Constitution of 1787 had been 
formed, or before a state had entered the union which 
it proposed to make. If the Supreme Court should 
consent thus peremptorily to be ousted of a jurisdiction 
(a question always of doubt in a final court), the im- 
puted wrong was remediless, a conclusion to which 
in that Ohio case, by any process of reasoning, that 
Federal court, in the inflamed state of parties, did not 
intend to be conducted. Moreover the case to be 
decided was a test case. Other states stood ready to 
follow the example of Ohio if prosperous in that 
litigation, and thus the great Federal bank, aspiring to 
sovereignty in the Union, would be stricken down. By 
that energetic action a certain array of the states was 
resolved to protect the political and private morals of 
their people from corrupt contact with that monster 
money corporation with outstretched Briarean arms. 
To sustain its darling, the national bank, in that hour 
of peril, the Federal party rallied all its forces : it 
ordered a levy en masse, and commissioned a Webster 
and a Clay to assume the chief command. In the 
Court of Original Jurisdiction a decision very quickly 
was obtained adverse to Osborne and the other defen- 
dants, and the case was appealed to the Supreme 
Federal Court at Washington, where it was argued for 
the bank by three great lawyers, Mr. John Sergeant 
of Philadelphia, Mr. Webster, and Mr. Clay. Thus 
the cause was transferred, reeking from the stews of 
party politics, to a judicial tribunal where political 
passion it was proved burned not less fiercely than in 
the witch's cauldron from which it had been taken. 
The Supreme Court, with solemn brow, upheld the 
suit of the bank, deciding that the agents of the state, 
although acting under its compulsion, were responsible 
as individuals, because the law of Ohio was in conflict 
with the Federal constitution, ignoring entirely the 
principle of public law recognized by every civilized 



a form of Government. 1 1 1 

jurisprudence, that the quality of a government's 
mandate does not render it less effective as a shield 
to protect the servant who obeys it. Without that 
principle of immunity and irresponsibility, embedded 
among the first principles of public law, governments 
could not command the obedience of their agents and 
so could not continue their existence. In truth and 
justice, if reference be had to the facts of the case, it 
is obvious to every mind that Ohio ought to be the 
only defendant in any proceeding instituted to contest 
the constitutionality of her tax laws. She had 
caused them to be enacted, she had caused them to 
be executed. The eleventh amendment was evaded, 
and its purpose disappointed, for the arbitrary, tech- 
nical, but convenient reason that the Supreme Court 
would not choose to recognize a state of the Union as 
a party to a suit at its bar unless it was " named as a 
party in the record/' On no other ground could the 
wished conclusion be reached. This legal result was 
obtained notwithstanding the recognized principle of 
law that a state could not be sued, or sue, nor indeed 
act at all, except through an officer or agent, as after- 
wards, very solemnly, it was resolved by the same 
court, but not by the same judges, in the Virginia 
habeas corpus cases. Thus, by the subtlety and 
duplicity of the lawyer, an effective mode was devised 
by which a state of the Union could be controlled, or 
have its action arrested, by afflicting its agents with 
penalties, nothwithstanding the authoritative eleventh 
amendment. This landmark of constitutional con- 
struction, with a very ostentatious parade of justice, 
was set up in 1824. It was followed by the Federal 
judges in their decisions as a fixed light, conspicuously 
in Poindexter against Greenhow, 114 United States 
Reports, p. 288, until the October term 1887, a long 
period of fifty-three years, when the Virginia habeas 
corpus cases inconveniently intruded in the Supreme 
Court for adjudication. Officers of the state of 



H2 The Republic as 

Virginia, in a judicial process, had been held to 
answer for preferring to obey her statute rather than 
an insolent prohibitory order of a Federal judge. The 
proceeding involved an interesting question of personal 
liberty and also the far more important autonomy of 
the state of Virginia, but was applicable, as every 
man saw, to every other state of the Union. The 
cause excited the public attention, the eyes of the 
nation were turned on it. Are the states but vassals 
of the Supreme Court ? Or are they endowed with 
high functions which Federal courts cannot take from 
them ? The officers alone had been impleaded, as in 
the Osborne case and the Poindexter case, and there 
was no way by which the Supreme Judges could 
escape from the embarrassment except by overruling 
his Honour Judge Bond of the court below, who 
naturally had followed the Osborne and the Poin- 
dexter cases, on the ground that the proceedings which 
had been instituted against her officers were sub- 
stantially against the state of Virginia, and only 
covertly and evasively against her officers, and so were 
within the prohibition of the eleventh amendment of 
the constitution. The Supreme Court in those cases, 
Mr. Justice Harlan alone dissenting, distinctly held 
that if a state be substantially and in effect interested 
in a controversy at its bar, it must be taken' to be, 
within the meaning of the eleventh amendment, a 
party to it, though not named in the record, as 
earnestly, but ineffectually, had been insisted by the 
defendants in the Ohio case. But be it known and 
remembered that in the habeas corpus cases there 
was no United States Bank with its question of Federal 
supremacy, stirring the ocean to its depths, standing 
like proud and offended Satan at the bar of the court, 
but instead a band of London speculators in the 
coupons of the state of Virginia, whose expected 
gains had been endangered by a law which they 
sought to have nullified by the court and the common- 



a form of Government. 1 1 3 

wealth of Virginia handed over to them to be plagued 
and tormented by their lawyers. No reader will feel 
surprised at the determined opposition of the state of 
Ohio to having branches of the United States Bank 
placed in her populous cities if he will follow the 
career of the bank in Senator Benton's " Thirty Years' 
View/' until it closed in ignominy in a criminal court 
of Philadelphia. The state of Virginia in the habeas 
corpus cases, who, from the beginning, was standing 
at the backs of her officials sustaining them by her 
purse and her countenance, was represented by counsel 
of greatest ability and fame : Ex United States 
Senator Hon. Roscoe Conkling of New York, Ex 
United States Representative Hon. John Randolph 
Tucker of the Supreme Court Bar, and Col. William 
W. Gordon and Mr. Charles V. Meredith of the Rich- 
mond City Bar. Judge William J. Robertson of the 
Supreme Court Bar had declined a retainer in those 
cases, on account of pre-occupation with other busi- 
ness. 1 

The objection made to the constitution in every 
state was that it would destroy the principle of self- 
government guaranteed to the states by the Con- 
federation in subjecting them to an external authority, 
which practically was the subjection to a foreign 
power. That unanswerable objection to the consti- 
tution was in these words, as Marshall gives it, who 
had the argument from the leaders of the Anti-Federal 
or Democratic party. They said : " The representa- 
tion of a particular state, not comprising the majority 
of the national legislature, they could not consider as a 
body safely representing the people ; and were disposed 
to measure out power to it with the same sparing hand 

In the Appendix is the answer of the author, one of the 
petitioners in the habeas corpus cases, to the rule in the court 
below. It discusses, but more fully, the constitutional question 
considered in the text. The answers of my corespondents 
placed the defence on other grounds. 

I 



1 1 4 The Republic as 

with which they would confer it on persons not 
chosen by themselves, nor accountable to them for its 
exercise, and not having any common interest with 
them." Edmund Burke has said that every nation 
has its test of liberty, and the one adopted by an 
Englishman is his consent given in the House ol 
Commons to taxes to be levied on his estate. This 
was a formidable objection to the Constitution O; 
1787, and, as it touches the vitals of self-government, 
it is proper that it should be considered here. This 
principle of the British Constitution was derived from 
the feudal monarchy, at one period the government o: 
Europe. In accordance with that feudal law, when 
taxes came to be imposed on an estate of the realm, 
it became entitled to representation in the govern- 
ment, that it might have the privilege of withholding 
its consent from taxes. 1 

The House of Commons originated in that principle, 
and it supplied a slogan for the American revolution. 

When North America was settled by British colonists 
that feudal idea migrated with them, and rooted itseL 
in the convictions of the people — twin-born taxation 
and representation. But, when a malignant planet 
was in the ascendant, and men were given over to 
madness and folly, Parliament enacted the Stamp 
Law, in violation of that fundamental right of every 
Englishman, whether he lived in Middlesex, or dwelt 
in the tobacco fields and rice swamps of Virginia anc 
Carolina. The constitutionality of the law was vigor- 
ously assailed, and it was repealed. It was proposec 
to accommodate the difference by allowing Parlia- 
ment to tax the colonies, first granting a representa- 
tion to the Americans in the House of Commons ; but 
the Americans still objected, saying: "We will not 
accept a minority representation in Parliament, such 
as had been awarded South section by the new con- 

1 Introduction to Robertson's " Charles the Fifth." 



a form of Government. i 1 5 

stitution, where we will be in a defenceless condition. 
What we assert to be our constitutional right as 
Englishmen is to be taxed only by our own legis- 
latures, where we have a beneficial representation. A 
minority representation would be only a hostage of 
obedience. Burke treats the proposition of an Ame- 
rican representation as suitable only for ridicule. Until 
the period of the Stamp Act, which marked the 
change in the colonial policy, the colonies, except as 
to their external trade, had exercised substantially the 
powers of self-government. When the new constitu- 
tion was submitted to the states for consideration, Mr. 
Henry, and such of the people as remembered the old 
ground of quarrel, objected that it embraced Gallo- 
way's old proposal of a minority representation for a 
state, but applied to an American Congress instead 
of to a British Parliament, but that the scheme was 
not more palatable by having the legislature brought 
to New York instead of being left in London. Pro- 
fessional men in all the states, and particularly the 
lawyers, who desired, at any cost, a settled govern- 
ment, on account of the prosperity of their business, 
became zealous advocates of the new Federal plan. 1 
They were named the " Illuminati" by the Anti-Federal 
orators, and the name communicated itself to the 
party to which they were attached. The " Illuminati " 
might consider such a system Republican govern- 
ment because it conferred the form of elective power, 
but it was not self-government, for, when we come to 
the result, the people of a state, in their most im- 
portant concerns, were to be governed by masses of 
voters not dwelling among them, nor interested in 
their good government. The sum of the matter was, 
after thirteen years of self-government, the politicians 
had grown tired of the system, which paid them 

1 " Debates in the Ratifying Convention of Massachusetts," 
Elliot's Debates. 



1 1 6 The Republic as 

nothing, and proposed to abolish it. In Virginia an 
additional battery was opened on the constitution, 
which was not silenced until Lee furled " the conquered 
banner" at Appomattox Courthouse. The consti- 
tution, it was urged, would create a legislative des- 
potism of the North over the South ; for a minority 
representation, where there are peculiar interests to 
be protected, is as accepted a badge of vassalage as 
Gurth's collar. It was asserted, by those assailants of 
the proposed constitution, that if the new instrument 
of government be examined it would be found to 
establish an external domination over the South more 
grievous than that which was proposed by Lord 
North's administration over the North American 
colonies. This examination will be instituted here, 
for truth and justice rejoice to be vindicated in the 
field of reason after their overthrow by armies. 

The first Article of the Constitution, by an arbi- 
trary decree, fixed the representation which it allotted 
to each section of the states in the House of Repre- 
sentatives of Congress, and also, that each state 
should have two senators, whilst the second article 
declared that the weight of each state in the College 
of Electors, which was to choose the President and 
Vice-President, should be equal to its combined 
strength in the two Houses of Congress. The section 
is good reading for the man who would comprehend 
the contrivance by which disobedient Federal deputies, 
under the lead of George Washington, converted a 
confederacy of sovereign states, where equality reigned, 
into a despotism of sections, which he, the patriot, 
recommended to Virginia — we shall see more about 
this a little later — as a plan of liberty and national 
life : " Representatives and direct taxes shall be ap- 
portioned among the several states which may be 
included within this Union, according to their respective 
numbers, which shall be determined by adding to th 
whole number of free persons, including those boun 



'e 



a form of Government. 1 1 7 

to service for a term of years, and excluding Indians 
not taxed, three-fifths of all other persons. The actual 
enumeration shall be made three years after the first 
meeting of the Congress of the United States, and 
within every subsequent ten years, in such manner as 
they shall by law direct. The number of represen- 
tatives shall not exceed one for every thirty thousand, 
but each state shall have at least one representative, 
and until such enumeration shall be made, the state 
of New Hampshire shall be entitled to choose three, 
Massachusetts eight, Rhode Island and Providence 
Plantations one, Connecticut five, New York six, New 
Jersey four, Pennsylvania eight, Delaware one, Mary- 
land six, Virginia ten, North Carolina five, South 
Carolina five, and Georgia three." l 

The framersof the constitution, as a base, admitted 
in their political calculations that the Union was 
divided into two sections of states, discriminated by 
different civilizations and opposing legislative in- 
terests, and conceded that these were permanent 
divisions in the Federal nation. It was recognized by 
them that Maryland, and the states to the southward 
of Maryland, composed the planting or slave-holding 
section, whilst the states to the northward were the 
farming or free soil section. Thus the slave border 
coincided with the geographical line marked on the 
maps of the Union as Mason's and Dixon's line. 
This division of the states gave a majority of seven 
votes in the House of Representatives, six votes in 
the Senate, and a corresponding superiority in the 
Electoral College to North section. Further on will be 
explained the theory, conjecture, or hope by which 
some of the states in the South section, or rather their 
deputies in the Federal Convention, were induced to 
believe that Federal power, after a short period, would 
be taken from the North and yielded in perpetuity to 

1 Constitution Article I. section 2. 



1 1 8 The Republic as 

the South ; or that an equilibrium of power, resting 
on the fluctuating base of population, would be main- 
tained between the two rivals for Federal empire. But 
the fact, without explanation, was printed on the face 
of the constitution that a government had been formed 
in Philadelphia, with the consent of Washington, 
which established over the South section a despotic 
executive and legislative authority. As President of 
the Convention General Washington had signed the 
constitution, and as a deputy had voted for it, yet 
when he had done so, he informed Lafayette that it 
contained so much objectionable matter that he would 
have nothing further to do with it, but leave it, " as a 
child of fortune," to its fate, a comfortable reflection 
for conquered Virginia. But Washington did not 
abide by that determination, he did not leave the 
child of fortune to the buffetings of fate, but took an 
active and pernicious part in determining its destiny. 
The Federalists were hard pressed in their contest 
over the constitution. Henry flamed over the field, 
eclipsing his own fame in that great debate, and the 
Lord of Gunston Hall, with brightest scimetar, fought 
by his side, for Virginia was the field on which the 
victory for the constitution was won. But the day 
was lost unless the reserve at Mount Vernon could be 
brought into the fight. The commanding general 
clearly understood that. So the Achilles of Federal- 
ism was induced to assume his armour of popularity, 
and, instead of a cautious neutral, became the most 
intolerant advocate of the constitution, or " new form," 
as he treacherously called it. So excited became the 
contest in which Washington engaged, that he quar- 
relled about the constitution with his friend and 
neighbour of Gunston Hall — quarrelled with him be- 
cause he too would not become Hamilton's henchman, 
and wear the swine-herd's collar. In our next chapter 
we will see something more of this world's hero in the 
role of a politician, and the methods which he sane- 



a farm of GoverntHeHt. 1 19 

tioncd to obtain, by the Virginia Convention, a ratifi- 
cation of the constitution contrary to the wishes of 
the majority expressed at the polls, and which has 
fixed so grievous a yoke on her neck. At the bottom 
of his heart Washington felt a superior scorn for the 
people which that act proved. He had a saying : 
" The people cannot see, but they can feel." T 

But he erred, for the least enlightened voter of 
Virginia understood well enough that, if that consti- 
tution were ratified, self-government would be lost, 
and the whole South subside into a tributary and 
province of the North section. Virginia was not 
more deceived a hundred years ago than she is de- 
ceived now, after she has been crucified by the soldier, 
and fed with vinegar and hyssop. One of the argu- 
ments, to which the " Illuminati " attached great 
importance, for producing a more intimate union 
between the sections, was that it would protect the 
opulent and exposed South from incursions by 
Northern hordes, ready to break over the border, or 
swarm on river and bay, that they might gather the 
golden harvest, or bear off fair Helen. The stories of 
effete Rome and of old Troy were to be repeated in 
Carolina and Virginia, whose soft climate invited to 
repose amid the carol of birds. 2 But those prophets 
of misfortune did not understand the martial breed in 
their midst, not yet hardened into manhood, for the 
red star of Stonewall Jackson had not yet risen. 
Those theorists and men of books did not know 
that in the womb of slavery, the African mother and 
nurse, there would be conceived a nation of fair 
warriors to restrain whom statesmanship in the West 
would be compelled to invent balances of power. To 
illustrate the blindness of the " Illuminati/' a picture is 
given taken from the war of the sections. 

An officer in the uniform of the Southern army, 

• Letter to General Putnam. a Madison's Correspondence. 



1 20 The Republic as 

with an escort of cavalry, occupied a position which 
commanded the bay formed at City Point by the 
union of Appomattox and James Rivers. In sight 
was Causon, the birthplace of John Randolph of 
Roanoke, City Point lay to the right, and below a 
Federal armada was at anchor, in its progress towards 
Richmond, whilst General Butler's co-operative army 
of thirty thousand men was camped on the southern 
shore. The officer had known of that famous argument 
for the more intimate Union which the Constitution 
of 1787 had effected. As he gazed upon the military 
spectacle, he bitterly reflected : " This avalanche of 
war was prepared for Virginia by the sagacity or 
patriotism of George Washington. The incursion from 
the North has come by land and flood, but now armed 
with Federal power, and South section is called to 
breast it without a recognized nationality ; without an 
ally ; without an arsenal ; without a navy; without an 
army ; or, with such an army as undisciplined valour 
provides. If French and American politicians had 
allowed the sections to remain under the British do- 
minion, or had they continued, as under the Articles 
of Confederation, in the fulness of time they would 
have become independent powers, allies and helpers 
it might be in civilizing the great West ; but those evil 
genii have made them enemies, and they are met here 
to-day to do murder on each other/' 

After the constitution had been signed by the 
deputies present, except Gerry from Massachusetts 
and Randolph and Mason from Virginia, who with- 
held the sanction of their names, the convention ad- 
journed on the 17th day of September, in the twelfth 
year of the independence of the United States, having 
been in session three months and five days, a period 
not more than sufficient to enable a woodman to con- 
struct his hut. 1 Yet, in that brief period, the leaders 

1 Madison's " Debates of the Convention/ 5 vol iii. Such is 



a form of Government. 1 2 1 

of the Federal party, sitting under lock and key, <4 had 
effected," Mr. Henry said, "as great a revolution as 
that which separated the colonies from the mother 
country," and had done it under circumstances, he 
might have added, which teach a memorable lesson 
to mankind in respect to the trust to be reposed in 
the political deputies of a republic. We have not yet 
become acquainted with the force which the Federalist 
politicians employed to accomplish that radical change 
in government, and it will be interesting to discover 
the leverage by which, so easily and so quickly, they 
overthrew the Confederation. It is a conspicuous 
feature in that revolution in government that a new 
ratifying authority was called into existence, and it 
was understood by the convention to be necessary 
to crown with success their conspiracy against the 
states. The ratification was to be by a convention 
to be held in each state, which would be no nearer the 
people certainly than a legislature, yet having this 
advantage, that, after adjournment, the existence of a 
convention would be terminated, which would make 
it as irresponsible to the electors as is an English or 
American jury after disbandment. But the precautions 
by which, in cases of capital importance, juries are sur- 
rounded to protect them from sinister influences, were 
not employed to guard those conventions. Although 
exercising the greatest sovereign powers, their mem- 
bers were exposed to all the seductive influences 
which could be brought to bear upon those fugitive 

Madison's statement, but we know many deputies not present 
did not sign the constitution. It is one of his customary eva- 
sions, the suggestio falsi, that all the deputies signed but the 
three mentioned. Mr. Moncure Daniel Conway, author of a 
valuable and scholarly " Life of Edmund Randolph/' recently 
published by Putnam Sons, New York, states this point well in 
his tenth chapter : " Of the fifty-five members who sat in the 
convention, the names of but thirty-nine were attached to the 
constitution. Of the other sixteen, three only remained to the 
end, and among these was Randolph." 



1 2 2 The Republic as 

elements. In this way a particular interest might be 
created in the breast of a member of a convention 
which would outweigh, when he came to vote, that 
general and speculative interest which a man of honour 
feels in performing a public duty. With a state le- 
gislature it was different. A legislature was a govern- 
ment, and had all the pride and jealousy which are 
imparted by the possession of habitual and permanent 
authority, of the force of which we have seen, in the 
course of this examination, many striking instances. 

The legislatures were the chosen depositaries of 
the power of the people. By them the states were 
governed, by them the general government had been 
set up and was operated. It will be asked whence 
did the convention derive a semblance of right to 
conspire against their importance ? It is evident the 
power was usurped. From his correspondence with 
Randolph it appears that Madison suggested that 
piece of legerdemain, and it constitutes some reason 
for calling him, as his admirers do, the father of the 
constitution. But they were bold gamesters. If nine 
states only could be prevailed upon to accept the new 
Federal arrangement, there would be created, within 
the circumference of the Confederacy, two Unions. 
War might have resulted, one being an intruder upon 
the unquestionable jurisdiction of the other. That 
was one chance which the revolutionary conclave ac- 
cepted. As the voters who elected the legislatures 
were the body of citizens who would elect the rati- 
fying convention, why, we may inquire, did the Federal 
leaders expect a better verdict for their new system 
with the latter than the former ? To answer this 
question satisfactorily it is necessary to sink the shaft 
deeper in this investigation, and bring into view the 
force which produced a ratification of the Constitution 
of 1787. 

The; first clause of the Sixth Article of that consti- 
tution was couched in these words: "All the debts 



a form of Government. 1 2 3 

contracted and engagements entered into before the 
adoption of this constitution shall be as valid against 
the United States, under this constitution, as under 
the Confederation." It was upon the public creditors, 
a body of mercenaries, a corps of free companions, 
taken into the service of the new constitution, that 
the leaders of the Federal party relied for victory in 
that field of popular self-government. It was an irre- 
sistible force when directed against temporary bodies 
of elected delegates impoverished by bad government 
and the calamities of a long war. 

The grand committee of the Congress of the Con- 
federation was composed of a member from each state. 
It spoke with an authority not awarded to other com- 
mittees. On the 8th of April, 1783, that committee, 
charged with the consideration of the Federal finances, 
reported the foreign debt of the Union to amount to 
$7,885,087, the domestic debt to $28,615,294, and 
the interest on the two sums to $2,362,320 ; which, in 
the general statement of the public indebtedness, was 
lumped at 540,000,000. But this aggregate did not 
include the unascertained amounts, with the attaching 
interest, expended by the states in their own defence, 
the interest to be turned into principal, which Congress 
had recognized as fairly a charge on the Federal 
treasury ; nor does it present to the mind the national 
debt in 1789, as stated by Secretary Hamilton, not 
diminished in amount, we may be sure, by the esti- 
mates of politicians who advocated the constitution 
which was to pay it. I give an extract from the 
report of Hamilton, become superintendent of finance 
under the new regime, that the gigantic bribe may be 
set before us which a political party offered to a free 
people about to exercise the most delicate function 
of their system. The Honourable Secretary says: 1 
" The result of the foregoing discussions is this : that 

1 " Annals of Congress," vol. ii. p. 2,004. 



124 The Republic ds 

there ought to be no discrimination between the 
original holders of the debt and the present possessors 
by purchase ; that it is expedient that there should be 
an assumption of the state debts by the Union, and 
the arrearages of interest should be provided for on 
an equal footing with the principal. The next inquiry 
in order, towards determining the nature of a proper 
provision, respects the quantum of the debt, and the 
present rates of interest. The debt of the Union is 
distinguishable into foreign and domestic : — 

The foreign debt 
amounts to princi- 
pal $10,070,307.00 

Bearing an interest of 
four and partly an 
interest of five per 
cent. 

Arrears of interest to 
the last of Decem- 
ber, 1789 .... $1,640,071.62 



Making together $11,710,378.62 

The domestic debt 

may be subdivided 

into liquidated and 

unliquidated prin- 
cipal and interest. 
The principal of the 

liquidated part 

amounts to . . . $27,383,917.74 
Bearing an interest of 

six per cent., the 

arrears of interest 

to the end of 1790 

amount to . . . $13,030,168.20 

Making together $40,144,085.94 



a form of Government. 125 



This includes all that 
has been paid in 
indents (except 
what has come into 
the treasury of the 
United States) — 
which in the opin- 
ion of the secretary 
can be considered 
in no other light 
than as interest due. 

The unliquidated part 
of the domestic 
debt, which con- 
sists chiefly of the 
continental bills of 
credit, is not ascer- 
tained, but may be 
estimated at . . $2,000,000.00 

The several sums con- 
stitute the whole 
of the debts of 
the United States, 
amounting together 
to $54,124,46456 

That of the individual 
states is not equally 
well ascertained. 
The secretary, how- 
ever, presumes that 
the total amount 
may be safely sta- 
ted at twenty-five 
millions of dollars, 
principal and in- 
terest. The present 
rate of interest of 
the state debt is, 



1 26 The Republic as 

in general, the same 
with that of the 
domestic debt of 
the Union. On the 
supposition that 
the arrears of in- 
terest ought to be 
provided for on the 
same terms with 
the principal, the 
amount of the an- 
nual interest, which, 
at the existing 
rates, would be 
payable on the en- 
tire mass of the 
public debt, would 
be on the foreign, 
computing the in- 
terest on the prin- 
cipal as it stands, 
and allowing four 
per cent, on the 
arrears of interest . $54 2 >599'66 
On the domestic debt 
including that of 
the states . . . $4,044,845.15 



Making together $4,587,444.81 

We have placed before us the bribe, offered by the 
convention for the ratification of a surreptitious con- 
stitution, increased to eighty million dollars, as it be- 
came by the time the first installment of interest was 
paid, accompanied by more than four and a half 
millions to be poured each year, as interest, into the 
lap of North section, occupied, if we accept Washing- 
ton's estimate of that people, by the most mercenary 



a form of Government. i 2 7 

population to be found in any age or country. We 
gather from the Congressional Debates, that as the 
prospect of ratification grew brighter, Northern specu- 
lators had been employed in buying the foreign debt 
at a discount, as they had been in gathering into their 
pockets the evidences of Federal debt scattered through 
the rural districts of South section. 1 The statement 
then is scarcely too strong that the interest of the 
Federal debt was paid to Northern holders. Who is 
surprised that ratification triumphed, or that North 
section should have sought to control the government 
for its exclusive benefit, which its merchants and 
bankers had bought in open market ? Ratification 
would give life to a government desirous to pay that 
huge sum, and endowed with every capacity to do so. 
It-would turn a worthless mass of Federal indebted- 
ness into gold and silver coin, or government securities 
having an equal value with it. Aladdin's lamp did 
not create a more boundless and sudden wealth, and 
we are not surprised that the children's children of 
the nation that received it should venerate Washing- 
ton and erect statues and monuments to his memory. 
Over all obstacles and arguments that reason or 
patriotism could interpose, the eighty millions carried 
the constitution on its shoulders as the giant of Israel 
bore off the gates of Gaza, and it had power, by the 
purchased votes of those conventions, to have planted 
in America the worst despotism that ever cursed the 
East. The capitalist with his balances governs the 
Union to-day, as wealth dominates in representative 
government wherever it is established. It is only 
when it copes with monarchy that its sceptre is 
broken and its nerves paralysed. That organization 
of power alone has capacity to resist the seductive 

1 Henry informs us that in the North and East the evidences 
of the Federal debt were " barrelled up," and that agents were 
then collecting it in South section at a discount which a Shylock 
might have envied. 



128 The Republic as 

influence. This advantage mankind will be quick to 
discover, and monarchy will stand on a foundation 
of adamant when the Republic is remembered as a 
superstition. 1 

There is no principle of public law or morality more 
universally admitted than that a change of government 
does not invalidate the public obligations. 2 Debts are 
due by the nation, and the first clause of the Sixth 
Article was inserted in the new constitution not to 
bind the debtor, but to assure the creditor that his 

1 The position taken in the text is fortified by an example 
found in a letter to the London " Times" of the date of Feb- 
ruary 4, 1887, from "An Occasional Correspondent," writing 
from St. Petersburg. Says the correspondent : " Of one thing 
there can be little doubt, and that is certainly the Czar's tenacity 
of opinion and purpose. Both the Afghan frontier and Bulgarian 
questions have borne witness to this quality. Even Prince 
Bismarck the other day admitted that the Czar had the courage 
of his opinions ; and this has lately been verified in home con- 
cerns as well as in foreign policy. For instance, a great agitation 
was got up a few months ago through the Ministry of Finance by 
the sugar manufacturers, who are half ruined by the over-pro- 
duction of the large refiners, stimulated by bounties and other 
privileges, in order to obtain a government measure reducing 
and regulating this production so as to enable them to pull through 
the crisis. Although strongly advocated by the Minister of 
Finance, the " Moscow Gazette " brought its powerful argu- 
ments, and M. Katkoff his most influential machinery, to bear 
against the proposal, and succeeded in carrying the day. Strange 
stories are rife as to M. Karitonovitch, the sugar king, who re- 
cently sent General Sausier, at Paris, a Slavonic loving-cup for 
his philo-Russian speech, and other individuals ; but this matter 
needs no reference here. The main point is, that when the ques- 
tion came to be discussed by the Imperial Council, an over- 
whelming majority of the members were in favour of the proposal, 
but the Emperor, receiving their recommendation, decided with 
a minority of five against it. The same happened with the 
Caucasian free transit question, when the Czar adopted the view 
of a minority of his advisers, even in opposition to the vote of his 
favourite uncle, the Grand Duke Michael, late Viceroy of the 
Caucasus, and prepared the way for the suppression of the free 
port of Batoum. It was contended by many persons that such 

2 VatteFs " Law of Nations." 



a form of Government i 29 

debt would be immediately and handsomely provided 
for to the extent to which it had been acknowledged, 
with the accumulations of interest, if ratification could 
be carried through. As soon as the Federal party had 
struck hands with the creditor the victory was assured, 
and a fawning suitor transformed into an insolent 
dictator. Through that twelve months' canvass, now 
in this state, now in that, that great bribe blazed in 
the forehead of the constitution like a headlight in 

procedure threw discredit on the wisdom and dignity of the 
Council, seeing that the members of this high assembly do not 
consider themselves called upon to resign in such a case as in 
countries where the majority makes the law. What is the good 
of a council if its advice is not listened to ? But such are the 
ways of autocratic governments. But for all that, many fairly 
impartial critics maintain that in both cases the Emperor was 
right, and that at least he had the courage to act up to his opinion 
in spite of majorities." 

This interior view of the Russian administration, so suddenly 
revealed to us, presents one of the most striking attitudes in 
history — an emperor and an autocrat standing immovable by 
the interest of the people, concerned for cheap sugar, against a 
conspiracy of capitalists wanting high-priced sugar. In the 
Republic, the sugar king would have had it all his own way, and 
the manufacturers would have filled the Lobby of Congress, each 
with a money-bag under his cloak. The example reminds an 
American of the days of Old Hickory, when the Cabinet often 
would advise one way and President Jackson would decide the 
other. Andrew Jackson would have made a great Caesar, as he 
was the greatest of American Presidents. His memorable con- 
test with the money-monster, the bank, which aspired to rule the 
government, shows that. According to Lord Macaulay, and the 
fact is indisputable, the King of France, Louis XIV., kept the 
orators of the House of Commons in his pay as systematically as 
ever did King Philip those of Athens. When Washington so 
earnestly, in his farewell address, warns his countrymen against 
foreign influence, he means the influence of foreign gold, of which 
the patriots of Boston had had a taste, as he well knew. The 
gods of gold are the deities of the Republic, and crowd its 
Pantheon. Englishmen admit, at least so the " Times " stated 
in 1867, that a great value which attached to the House of Peers 
was, that it rendered Parliament unpurchaseable by the wealthy 
corporations which solicit its favours. 

K 



130 The Repttblic as 

the gloom of night. If all other adverse influences 
were removed, " the gods of gold " would render the 
Republic impossible as a permanent or desirable form 
of government. 

But a horrible shadow, a goblin damned, was ever 
standing with menacing gestures before the chieftains 
of the Federal party. It attended them at the market, 
it followed them to the council, it sat with them at 
the feast, it oppressed their slumbers, it darkened the 
sunlight — the dread of counter-revolution. As fre- 
quently before intimated in these pages, indeed 
charged, the revolution had been a fraud on the 
people of the colonies, concocted between the French 
premier and the American revolutionary chiefs. 
Loud -mouthed discontent, wafted on every breeze, 
informed the conspirators that the deception had been 
discovered. It will be remembered that Governor 
Randolph of Virginia explained to the Federal con- 
vention, as an apology for the national government 
proposed by him as a substitute for the Articles, that 
a strong central government was necessary to make 
sure the revolution, and that the explanation was ac- 
cepted as satisfactory by that assembly of Federalists 
sitting in conclave. So with general approbation the 
old constitution was put into the cauldron, and, amid 
the incantations and sorceries of those necromancers, 
a new body was taken out. Old ^Eson came forth a 
smiling Apollo. An inspection of that roster will dis- 
close the fact that the convention was composed ot 
the men who had been foremost in making the revo- 
lution. Washington was the president, Franklin stood 
next to Washington, then came Robert Morris, " the 
financier of the revolution/' and the rest of the body 
followed in order, composedof prominent revolutionists. 
The conspirators were met again on the classic ground 
of treason, but now to organize a national authority 
strong enough to secure the prize which they had won 
with the aid of the French army and navy. Daylight 



a form of Government. 131 

had broken upon the disturbed waters, and had revealed 
to those mariners that their bark had drifted among 
the breakers. They had conquered with the sword, it 
was necessary now to conquer with the law. The Re- 
public had been false to all its promises, was verging 
on anarchy, and the revolution was threatened with 
counter-revolution. Strenuous and immediate action 
alone could avert the catastrophe. The dark con- 
clave, with its energetic president, remembered that 
Federalism had produced the revolution, and now 
they looked to their patron saint to preserve it. By a 
bold and successful fraud a convention of the States 
Rights party, assembled at Annapolis, had been con- 
verted to their purposes, and the conspirators found 
themselves a convoked constitutional convention, whose 
liberty of action was restrained only by the instruction 
of absent legislatures and by moral scruples, which 
appeared frivolous to men hanging on the brink of 
counter-revolution. With a leader endowed with bold- 
ness and the highest gifts of intellect, sustained by a 
corps of able and obedient followers, wildest hopes 
might be realized. 

The Franco- American revolution had not produced 
the promised Elysium. The assurances of Thomas 
Paine, the infidel philosopher who had been brought 
to America by the cabal to write up the revolution 
with his trenchant and brilliant pen, that all the evils 
of society were produced by kingship, had lost, not- 
withstanding the applauses of Washington, their hold 
on the public mind, nor were the people compensated 
for their misfortunes by the stately eloquence of the 
Declaration of Independence an exaggerated fiction 
written by another infidel philosopher. 1 Jefferson had 

1 The following letter from Jefferson, then a member of the 
Continental Congress, to Sir John Randolph of Virginia, a refugee 
in England from the revolution, dated August 25, 1775, contrasts 
finely with its contemporary, the Declaration of Independence : 
" If indeed Great Britain disjoined from her colonies be a match 



132 The Republic as 

seriously informed them that George III. was a king 
to be described by all the characteristics of a tyrant. 
But they now remembered with regret that they had 
enjoyed prosperity and happiness under their old 
master, when Washington planted tobacco on the 
banks of Potomac, or earlier, when he was a bold 
hunter at Greenway Court, and surveyor of the Nor- 
thern Neck, attached to the household of Lord Fairfax 
and moving in his train. That was before Washing- 
ton had come to be proprietor of Mount Vernon ; 
before he had married into the aristocracy of the 
colony ; before he had been sent a burgess to Williams- 
burg, where he had learned to talk rebel politics. In- 
dependence had brought nothing but hard times, and, 
during that morning hour of the Republic, indications 
were not wanting in the states that even the social 
edifice might give way. The man who toiled had 
begun to question with his neighbour whether the 
pennyworth duty on tea, to which all grievances had 
been reduced, 1 which was used by townsfolk and 
wealthy planters, but was never seen at the farmer's 
or poor man's board, was compensation for the cruel 
privations which they had been made to suffer on 
account of it ? 2 They had begun to take counsel 

for the most potent nations of Europe, with the colonies thrown 
into the scale, they may go on securely. But if they are not 
assured of this it would be certainly unwise, by trying the event 
of another campaign, to risk our accepting foreign aid, which 
may perhaps not be attainable but on condition of everlasting 
evulsion from Great Britain. This would bethought a hard con- 
dition for those who still wish for reunion with their parent 
country. I am sincerely one of those who would rather be in 
dependence upon Great Britain properly limited than on any 
nation upon earth, or than on no nation." 

This letter may be found in " Lee's Remarks on Jefferson," 
pp. 226, 227. For an interesting account of Sir John Randolph, 
see Mr. Conway's " Life of Edmund Randolph," published by 
Putnams' Sons, New York. 

1 See " Marshall's Washington, 5 ' first edition. 

2 When Colonel Pickett returned to Fauquier, he presented a 



a form of Government. 1 3 3 

whether it would not be better to disband these fine 
new sovereignties, which the state legislatures could do, 
and return to the British allegiance, trusting to such 
a charter as Lord Howe had offered, or more recently 
King and Parliament had proposed, along with a full 
redress of all grievances of which they had complained. 
Charters were the solid foundation of British liberty, 
and they could be made a solid foundation of American 
rights. It was clear that the Republic had failed to 
produce anything but disasters, and of these there had 
been a plentiful crop. Shay's rebellion in Massa- 
chusetts had been suppressed chiefly by a meditated 
Federal intervention, but not before a returning loyalty 
had gleamed forth. The sentiment boldly uttered by 
the rebels of Massachusetts found ready response in 
other parts of the Union, particularly Virginia, where, as 
we know, the revolution had been carried by foul means. 
The Union was in a volcanic state, and anarchy was 
preparing to unfurl his crimson banner. " The flames 
of internal insurrection are ready to burst out in every 
quarter. From one end to the other of the continent 
we walk on ashes concealing fire beneath our feet." 
Thus spoke James Wilson of Pennsylvania, as, with 
unblest feet, he walked over the burning marl. Wash- 
ington's correspondence, though expurgated and altered 
by Jared Sparks, a repository of valuable facts, sup- 
plies another picture of those distressful times. Colonel 
Henry Lee, known to posterity as " Light Horse 
Harry," a brilliant figure of the revolution, and as con- 
spicuous for intellect as for martial courage, had been 
sent to the theatre of strife and discord, and thus 
reports to Washington : " A majority of the people of 
Massachusetts are in opposition to the government. 
Some of the leaders avow the subversion of it to be 
their object, together with the abolition of debts, the 

package of tea to Farmer John Martin Porter, a zealous partizan 
of the revolution. Farmer John naturally turned it over to his 
wife, who boiled the tea with a flitch of bacon ! 



1 34 The Republic as 

division of property, and a reunion with Great Britain. 
In all the Eastern states the same temper prevails, 
more or less, and will openly break forth whenever 
the opportune moment may arrive. The malcontents 
are in dose connection with Vermont, and that dis- 
trict, it is believed, is in negotiation with the govern- 
ment at Canada. In one word my dear General, we 
are all in dire apprehension that a beginning of anarchy 
is made, and we have no means to stop the dreadful 
work." With a master's hand Washington adds another 
touch to the picture : " There are combustibles in every 
state to which a spark might set fire." 

The rebellion of the majority in Massachusetts 
against the Republic was suppressed by the sword. 
After its brief domiciliation in a Republic already 
liberty had lost something of its inherent privileges, 
for whilst it possessed an inalienable right, at pleasure, 
to secede from the British Empire, it had not an 
inalienable right, at the wish of the majority, to return 
to it. It was evident to every mind that the revolu- 
tion had proved a deplorable failure, and the people 
were looking to a renewal of the old connection to 
restore prosperity to their distressed country and 
families. An unselfish and wise Washington would 
have indulged the colonists in their fond wishes. 
That was not too disinterested a part for the nature 
of man, for among the opponents of the new constitu- 
tion were many great men who, recovered from the 
illusion of the Republic, were aiming at that result. 
But Washington was made of the stuff of which the 
conquering general is formed, and a strong selfishness 
was the base of his character. His own fame, or 
" character " as he called it, was the paramount object 
with him from the time when he retired from the 
King's army on a frivolous question of military etiquette, 
to the end of his laborious and brilliant career. He 
possessed an immense force of character, united with 
an executive capacity rarely equalled, and he con- 



a form oj Government. 1 35 

trolled, by an iron will, all who were brought within 
the sphere of his influence, except his wife, whom he 
cherished with a tenderness and love that exalted a 
hero. Even the sons of light, as they gathered about 
him to fashion and temper his political opinions, 
confessed the awe he inspired. Undoubtedly Wash- 
ington was an able general. The cast of his character 
was altogether military, and he was never so much in 
his element as when among his soldiers. But he was 
a blind statesman, and the condition in which he 
found Virginia, and that in which he left her, sustains 
that opinion. He found her, when he grew to man's 
estate, a feeble colony, whose settlements were driven 
by the French and Indians within the barrier of the 
Blue Ridge Mountains, yet having a great unoccupied 
territory defined by recognized boundaries and guar- 
anteed by a great monarchy. That undeveloped 
colony, with a mixed population of free men and 
slaves, he took from the protection of a fostering 
government, on a pretext of grievances, and created a 
powerful nation on its borders with a claim to its 
obedience. When he died, that power, that nation 
which he had established, under the false pretence of 
an Indian title, had wrenched from Virginia the 
greater part of her unoccupied domain, and, as an act 
of grace, had allowed the Virginian boundary to 
extend as far west as the Ohio River, instead of being 
limited by the Alleghany Ridge, according to the pre- 
tension of Congress standing on its Indian title. 1 But 
the fame of Washington was identified with the revolu- 
tion, and that in turn with the Union. It represented 
the heroic part of his life. So he called his lieutentants 
around him and took measures to fasten the revolu- 



1 Madison's Correspondence with Jefferson, and his Debates 
in Congress, to be found in the Madison Papers, and Rives' 
u Life of Madison." See particularly the tenacious part which 
the Scotchman Wilson plays in the controversy. 



136 The Republic as 

tion on a reluctant, dissatisfied people. According to 
the common authorities, Shay's rebellion exerted a 
determining force in producing the present govern- 
ment with its consolidating tendencies. 1 Whilst at 
the Court of France, in curt, but homely language, 
Jefferson remarked : " Shay has induced the conven- 
tion to set up a kite to keep the hen-yard in order" ; 
and the South section felt his beak and talons. 

Amid all domestic embarrassments Washington 
had but one remedy — more Federalism. Strafford 
had not a stronger faith in " Thorough," and the leader 
of the revolution thus responds to Colonel Lee : "You 
talk, my good sir, of employing influence to appease 
the present discontents in Massachusetts. Influence 
is not government. Let us have a government by 
which our lives, liberties, and properties may be se- 
cured ; or let us know the worst at once. There is a 
call for a decision. Let the reins of government be 
braced and held with a firm hand." In this letter was 
the germ of the Constitution of 1787. Washington, 
as well as the other heads of the Federal party, was 
convinced that the English feeling might, at any time, 
gain the ascendant in a state legislature, and express 
itself by determinate action. He well remembered, 
and in no wise forgot, that an elective body in Vir- 
ginia, called a convention, had, without the slightest 
authority from the people, withdrawn the colony from 
the British jurisdiction, and the act might be repeated 
with respect to the American Union. The thinking 
men of the Federal party understood well enough 
what the dissolution of the Union, and the formation 
of partial confederacies, suddenly become so popular, 
signified. Governor Clinton recommended that New 
York should form a separate Union with neighbouring 
New England, and Henry, representing a mass of 
Southern opinion, openly favoured a Southern Con- 
federacy. They knew Henry to be a man of too 

1 This was Jefferson's notion, but he was abroad unfortunately. 



a form of Government. 1 3 7 

large a brain to contemplate, except provisionally, a 
Southern slaveholding Union, at that time not strong 
enough to cope with the buccaneers within its own 
headlands ; nor could Governor Clinton's scheme, 
viewed in connection with the obstacles which he had 
thrown in the way of constitutional amendment, bear 
any other construction. On every hand were to be 
found unmistakeable indications which showed the 
drift of the popular sentiment, and the purpose of the 
men who were guiding it. If the movement were 
encouraged by the promises and smiles of the British 
Court, the revolutionary regime might dissolve in a 
day, and the cloud-built tower of the Union disappear. 
It was evident that the Confederacy would not bind 
the states to the revolution, and the Federalists were 
determined to make a central government that would 
have power to effect that object. 

After trying politician government and finding it a 
snare, the wish of a deluded and misguided people, to 
abandon it, and revive the British connection, is an 
obscure but indisputable part of American history. 
The truth has been darkened and covered over by the 
partisans of the revolution, but is susceptible of satis- 
factory proof. Madison's letters to Randolph establish 
the existence of such a party in the East, in the North, 
and in Virginia, whilst it is known that in South 
Carolina the Tory party was still greatly in the 
ascendant. The " Life of Hamilton," by his son, a 
valuable work for its voluminous information, as well 
as for ability and candour, affords evidence that the 
representatives of the English sentiment had left the 
retirement into which they had slunk, hoping, as the re- 
sult of politician reign, a re-annexation of the American 
colonies to the parent state, where stability and pros- 
perity might again be enjoyed. As we learn from the 
writings of Washington, the Tories, in the outset of 
the American troubles, had held aloof from all politi- 
cal connections, fearing to be compromised by them, 



138 The Republic as 

and believing the royal authority to be strong enough 
to sustain itself ; but later in the struggle they were 
found in the legislatures and in Congress, often serving 
on important committees. It was this party of the 
majority, inflaming all discontents, and obstructing by 
force of its numbers every measure of constitutional 
reform, that the Federalists determined to disarm and 
silence by creating an absorbing central power to be 
ratified by conventions exercising the popular sove- 
reignty. " Per fas aut per tie/as," appears to have 
been the maxim of the Hamiltonian Federalist, a 
dangerous principle to animate a political party 
having the reality of great intellect with the exterior 
of patriotism and honour. Many of the leaders of the 
revolution, convinced already of the impracticable 
nature of Republican government, attached them- 
selves to this powerful interest, between whom and 
the States Rights party the strongest sympathy existed. 
The parties were united by a common enmity, and, in 
politics, hatred is stronger than love. The Tory party 
then were the active partisans of every interest which 
would thwart the Federalists, seeking to subordinate 
the South to the North. Their first step was to 
defeat constitutional reform, which would invigorate 
Congress ; their next was to break the Union into 
partial confederacies, which would be an open door to 
England and their former prosperity. This was "the 
purpose " to which, in his letter to Randolph, Madison 
darkly alludes as governing the politics of the great 
orator. Belligerent interests showed themselves every- 
where within the pale of the Union, getting ready 
as soon as a theatre was prepared to struggle for 
mastery, whilst smothered enmity and distrust be- 
tween North section and South section indicated 
them as distinct nations, whom it would be gross error 
in politics to embrace by the same authority, unless 
it were composed as the anomalous British Empire, 
where all diversities were tolerated in its detached and 



a form of Government. i 39 

multiform parts. To prevent that threatened revolt of 
the people against the revolution, become the founda- 
tion of a new order, with its interests and aspirations, 
a far stronger government was demanded than a con- 
federation of sovereign and self-governing members, 
and such a one the Convention of 1787 had provided, 
although the most sacred pledges of representative 
duty had to be violated in order to effect that object. 
The Federal pyramid was raised to the stars, whilst 
their regal ornaments were stripped from the states 
and distributed among a Congress, a president, and a 
Federal judiciary. Historians of the North and South, 
and such partial essayists as wrote the " Federalist/' 
may assign the constitutional revolution to as many 
causes as interest, prejudice, or fancy may suggest ; 
but the one given here is the true one. The new 
government was made to control the people, it was 
made to prevent counter-revolution ; and this, at that 
era, was self-government in America, as seen from the 
inside. 



CHAPTER VI. 




N the order in which our subject is dis- 
tributed, we come now to the ratification 
of the constitution by conventions of the 
states, — those wells of popular sovereignty 
undefiled. It was the last act in the 
eventful drama which was begun in the legislature of 
Virginia by Federalists acting the part of States Rights 
men. The comedy of constitutional amendment, 
which was begun in 1783, was ended in 1788 in the 
tragedy of revolution, and it is decent that we who have 
stood by the cradle of self-government in America and 



1 40 The Republic as 

witnessed its birth, should attend at its death, its funeral 
and interment. The defence offered for the Convention 
of 1787 is that, in order to propose to the people of the 
states at that juncture a good system of government, 
the nature of the trust reposed in that body allowed 
them to pass over Congress and the legislatures, as 
an amending and ratifying authority, and submit their 
plan of government directly to the sovereign voters, and 
that the same public necessity excused them for setting 
at nought the instructions of the legislatures as to the 
extent to which amendment should be carried. 1 If 
the public necessity had existed, and the appeal from 
the servant to the master had been made in good faith, 
the plea would have a colour of validity; though then 
the legislatures might have been allowed to judge of 
the public necessity. But the plan was not submitted 
to the people at their voting-places to obtain a plebis- 
cite, but was proposed to another set of agents elected 
like the members of the legislature, but who would be 
more malleable to the secret purposes of this new 
party of revolution. This fact renders the evasion 
manifest. The question was this : By what course of 
argument can the convention be justified in refusing 
to submit their work to the bodies who had commis- 
sioned them, and to whose final judgment the sove- 
reign authority of the people had committed that 
important duty, but, instead, to assemblages of men 
unknown to the existing law and indicated by them- 
selves ? There were two advantages to be derived 
from that substitution : the delegations would not be 
brought to face Congress having a power of veto, 
whose authority they proposed to overthrow, nor the 
legislatures whose instructions defiantly had been 
pushed aside. But, considering conventions of the 
people as proper and convenient modes of ascertain- 

1 This ground was indicated by Madison, according to his 
reported Debates. 



a form of Government. 141 

ing the popular will, were those oracles of the public 
consent so fairly interrogated as to make their decision 
equivalent to a popular verdict ; or were they not in 
some instances, and those the most important, induced 
to betray the trust reposed in them and ratify the 
new government when the voters at home were known 
to be opposed to it ? This is an important question 
to be answered in this book, where we are visiting the 
fountains of Democratic power, and the subject will 
be examined by such lights as have been procured by 
me after the lapse of a century. 

John Marshall is known to us as the fullest and 
most reliable of Washington's biographers, and the 
greatest of American judges ; he must now be intro- 
duced to the reader in the additional capacity of a 
member of the convention which, in Virginia, accepted 
the Constitution of 1787. He was born in Lower 
Fauquier, and as a captain of infantry had entered 
Washington's army, where he served with credit 
throughout the revolution. The debates of the conven- 
tion inform us that, being a lawyer, he was attached 
to the Federal party, where the greatness of his talents 
made him a conspicuous advocate of the constitution. 
Associated with the guiding minds of his party, he 
was informed of its tactics, its purposes, its hopes, and 
transactions, not only in Virginia, but in other states 
where success was considered most doubtful. Where 
a man so illustrious for character and genius writes 
of the times in which he acted, we attend with respect, 
assured that knowledge and truth ennoble every 
utterance of the pen. In respect to ratification, that 
witness and historian thus speaks : " To decide the 
interesting questions which agitated a continent, the 
best talents of the several states were assembled in 
their respective conventions. So balanced were the 
parties in some of them, that even after the subject 
had been discussed for a considerable time, the fate 
of the constitution could scarcely be conjectured ; 



142 The Republic as 

and, in many instances, so small was the majority in 
its favour as to afford strong ground for the opinion 
that, had the influence of character been removed, the 
intrinsic merits of the instrument would not have 
secured its adoption. Indeed, it is scarcely to be 
doubted that in some of the adopting states a majority 
of the people were in opposition. In all of them the 
numerous amendments which were proposed demon- 
strate the reluctance with which the new government 
was accepted ; and that a dread of dismemberment, 
not an approbation of the particular system under 
consideration, had induced an acquiescence in it. The 
interesting nature of the question, the equality of the 
parties, the animation produced inevitably by ardent 
debate, had a necessary tendency to embitter the 
disposition of the vanquished, and in many instances 
to fix more deeply their prejudices against a plan of 
government in opposition to which they were enlisted. 
North Carolina and Rhode Island at first did not 
accept the constitution, and New York apparently was 
dragged into it by a repugnance to being excluded 
from the Confederacy." 

In 1788 there were in the Union only the original 
thirteen states which withdrew from the authority of 
the British government^ and, as North Carolina and 
Rhode Island did not accept the constitution until 
after the government, which it provided, had been set 
up, the number of ratifying states was reduced to 
eleven. As the concurrence of nine of them was 
necessary, according to the terms of the constitution 
itself, to infuse life into the new system, we will have 
to determine, each reader for himself, whether the 
language of the historian justifies the belief that as 
many as three conventions affixed their seals to the 
constitution contrary to the wishes of the majorities 
which had elected their members. If we conclude 
that it does justify that belief, the constitution, con- 
cocted in a fraudulent disobedience of instructions, 



a form of Government 1 43 

was not ratified by the requisite number of conventions 

obeying the constituent will, and the government did 
not receive the sanction provided in the constitution. 
This is a wonderful fact concerning a government 
that claims to reign over the Western world by the 
consent of the majority. In every one of the many 
instances in which majorities were induced to accept 
the constitution under the sinister influence of " men 
of character," we know there was a majority opposed 
to it at home. Such a ratification was a fraudulent 
act, and would have annulled an agency in an English 
or American court of law or equity. But the doings 
of politicians rise above the plane of legal morality, 
and cannot be tried by judges and juries. Who the 
men of character were to whom Marshall alludes, 
who, at that supreme moment of a nation's destiny, 
interposed to cast the balance against self-government 
by the people in a democratic system, does not appear 
from any chronicle or record accessible to this writer, 
but only this, as by the most authentic evidence will 
be proved, that General Washington, and Governor 
Randolph, were certainly, in part, alluded to by him. 

In the common use of words, " some of the adopting 
states " would be held to imply three states or more. 
On the one hundred and fifty-first page of the fifth 
volume of his w r ork Marshall repeats the statement, 
using the same word to indicate the number of states, 
as though it was the prominent fact of that constitu- 
tional revolution, as in good truth it was. He says : 
" At length the votes for the President and Vice-Pre- 
sident of the United States, as prescribed in the con- 
stitution, were opened and counted in the Senate. 
Neither the animosities of parties, nor the prepon- 
derance of the enemies of the new government, in 
some of the states, could deprive General Washington 
of a single vote." But the historian should have 
remembered that Jefferson, as yet, had not formed 
his opposition party of Democrats, nor had the public 



144 The Republic as 

been made acquainted with the correspondence of 
Bushrod Washington with Madison, afterwards to be 
displayed in these pages, else the biographer of 
Washington might have been deprived of that ground 
of felicitation. In his lexicon of the English lan- 
guage Doctor Noah Webster defines " some " to be a 
word denoting a number of persons or things, greater 
or less, but indeterminate. The example which he 
gives to illustrate the use of the w r ord in this sense, is 
taken from Sir William Blackstone's Commentaries, 
and is as follows : " Some theoretical writers allege 
that there was a time when there was no such thing 
as society." In the sense in which the word is em- 
ployed by that author the word "some" assuredly 
means more than two writers. The number of con- 
ventions which played false to their constituents, 
under the influence of the great Federal bribe, doubt- 
less was indeterminate by the cautious historian, and 
therefore he made use of the word "some," With 
markets for the purchase of votes opened by the 
attorneys of the creditor at the threshold of every 
convention, it could not have been known to Marshall 
how many acts of ratification had been corruptly 
obtained, but "some" were obtained that he dis- 
covered. 

The smallest number of states where a ratification 
was procured by purchase, or other illegal mode, is 
enough to demonstrate the character of the govern- 
ment, deriving its authority from such a polluted 
source, for number is an accident. It is a fact worthy 
of remark that, as soon as the conventions met, a 
chorus was sounded by the Federalists that by the act 
of election every constituency had parted with its' 
power, and that the "representative," as still he was 
called, was at liberty, in his vote on the constitution, 
to disregard the opinion of the majority that had 
elected him. That this question of political ethics 
may be determined, before we proceed further, it 



a form of Government. 145 

becomes necessary to examine whether those con- 
ventions were independent bodies, or were intended 
by the constitution to be an organ by which the 
majority opinion, as legally ascertained, might be 
expressed. The representative character of the con- 
vention would appear to be decided by the fact that 
each member of it was chosen by a majority of the 
voters in his county, and that no one of them took a 
seat by any other title. If a delegate was not a 
representative of the people, why was he chosen by 
the people ? The Republic becomes a solecism when 
the delegate ceases to reflect the opinion and wish of 
the voters who selected him as their representative, 
but is swayed by those who are called " men of cha- 
racter/' but who, if the truth were known, might have 
been actuated by some form of self-seeking, perhaps 
by Northern gold. But this is not a question of 
argument ; it is a question of fact. The character of 
the constitution, as a government of the people, was 
stamped on its forehead by the convention who made 
it, the preamble of the constitution, sent to the con- 
ventions to be accepted, or rejected, being in these 
expressive words : " We, the people of the United 
States, in order to form a more perfect union, establish 
justice, ensure domestic tranquillity, provide for the 
common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and our 
posterity, do ordain and establish this constitution for 
the United States of America." " The people," then, 
were the ordaining power, the conventions were their 
organs, and, to the extent that their wishes, as indi- 
cated by majorities at the voting-places, were not 
represented in the Acts of Ratification, the constitution, 
according to its own theory, was deprived of a legal 
sanction. 

If the word employed by Marshall be construed to 
signify only two states, and those should be important 
members of the Federal body, and so situated in the 

L 



146 The Republic as 

Union as to divide it into several parts, as the states 
of Virginia and New York, a ratification, though by a 
complement of nine states, would have proved of no 
avail. In that case, within the same political area, 
two confederacies would have existed, both powerful 
and having many causes to provoke dissension and 
hostilities between them. In the list of ratifying states, 
it appears that the two just named were the last to 
accept the constitution before the government which 
it created was organized. On account of that reluc- 
tance and delay, as well as on account of their impor- 
tance, it is probable that the partisans of the constitution 
would employ every agency at their disposal to attach 
them to the new Federal car. It becomes then a 
question of importance to discover, that the methods 
of the Federal party may be known, by what means 
ratification was carried to a consummation in New 
York and Virginia. They are test cases. 

On the third day of June, 1788, the convention to 
ratify or reject the constitution for Virginia assembled 
at Richmond. 1 By that time it had been accepted by 
eight states, and friend and foe expected its fate to be 
determined there, although four days before the con- 
vention voted on the question of ratification, New 
Hampshire, as we know now, had taken position in 
the new Federal alignment. But that fact was not 
known to the Convention of Virginia, and, if known, 
the fate of the constitution would still have depended 
upon its action. The 25th day of June the committee 
of the whole House reported that " the constitution be 
ratified." Then came the trial of strength between 
those eager and hostile parties. A substitute for the 
report was offered by the opponents of the constitution, 
" That before the constitution be ratified it should be 
referred to the states for amendment. ,, Upon the 

1 Mr. Conway states that the convention began its session the 
2nd day of June. (" Life of Edmund Randolph," p. no.) 



a form of Government* 147 

question thus raised the vote was taken, and resulted 
in a majority of eight votes for the unconditional rati- 
fication of the constitution. When the vote was called 
upon the question of enrolment, the majority was in- 
creased to ten votes. If the majority be rated at 
eight votes, as upon the test it was, four votes taken 
from the Anti-Federal side and added to the Federal 
side produced that result, and placed Virginia among 
the " many instances " in which the extraneous influ- 
ence of men of character induced deputies to betray 
the constituent will. With Marshall's statement be- 
fore us, he being a member cf the convention, and 
cognizant of Madison's snares and devices, it is pro- 
bable, from his own evidence, that ratification was so 
produced in Virginia. But probability becomes cer- 
tainty when we consult evidence which yet survives, 
notwithstanding the dust and oblivion of a century. 

When Edmund Randolph returned from Philadel- 
phia, he addressed a communication to the legislature 
of Virginia in which he assigned the reasons which had 
induced him to withhold his signature from the con- 
stitution which there so recently had been made. The 
general ground taken in that paper was that the instru- 
ment contained many defects which must be removed 
before Virginia could with safety accept it, and that it 
should be amended by another convention of the states. 
With that expression of opinion before them, the free- 
holders of Henrico county and Richmond city had 
chosen him to represent them in the approaching con- 
vention. But when that body convened, it became 
known that the Governor had changed sides on the 
question of ratification, and had become as zealous 
for the constitution as before he had been zealous 
against it. Long after, in allusion to that vote, John 
Randolph of Roanoke said of his kinsman : " Friend 
Edmund was like the aspen, like the chameleon — ever 
trembling, ever changing." It was this defection in 
the ranks of the Anti-Federalists that produced ratifi- 



148 The Republic as 

cation, for, than Edmund Randolph, there was not to 
be found in the commonwealth a public man of greater 
consequence, as the public trusts, devolved on him 
continuously, proved. We now recur to the correspon- 
dence of Washington, who, at Mount Vernon, was 
deeply interested in the " child of fortune," which at 
first he had spurned from him coldly, and had left to 
its fate. On the 4th day of June Madison writes to 
him with respect to the course of the Governor, who 
openly had changed his flag. Madison writes : " To- 
day discussions commence in committee of the whole. 
The Governor has declared the day of previous amend- 
ments over, and thrown himself into the Federal scale. 
The Federalists are a good deal elated at the existing 
prospect. I dare not speak with certainty of it." But 
the trembling balance had been cast by the Governor, 
for the General's next correspondent from Richmond 
speaks confidently of the victory which the desertion 
of Randolph would secure to the Federalists. Bushrod 
Washington was the nephew of General Washington, 
and was one of the able lawyers and public men of his 
day. He was made a judge of the Supreme Federal 
Court, which he adorned, not less by his talents and 
learning than by his virtues. He represented West- 
moreland county, and thus writes to his uncle from 
Richmond : " Mr. Henry on Thursday called upon the 
friends of the proposed plan to point out the objections 
to the present constitution. This challenge, which 
was given with the appearance of confidence, drew 
from the Governor, yesterday, a very able and elegant 
reply for two hours and a half; for I suppose you have 
been informed of Mr. Randolph's determination to vote 
for the proposed government. However, I am not so 
sanguine as to trust to appearances, or even to flatter 
myself that he made many converts. A few, I have 
been confidently informed, he did influence, who were 
decidedly in the opposition." From this language it is 
clear victory was given to ratification by the apostasy 



a form of Government. 1 49 

of Governor Randolph. If the word u few " embraces 
as many as three votes, and that number be added to 
the Governor's own vote, his defection accounts for the 
majority by which, on the test vote, the constitution 
was ratified. But Washington was strongly susceptible 
of party feeling, and was something more than an in- 
active sympathizer on that occasion. In this instance 
he interposed promptly and decisively, giving in the 
outset his approval to the great crime being perpetrated 
in the Virginia Convention against government by the 
people. Washington thus replies to Madison : "What 
I mostly apprehend is that the insidious arts of its 
opposers may have induced instructions to the dele- 
gates that would shut the door to argument and be a 
bar to reason." That was a strange avowal to come 
from the pen of a great moralist. He fears lest a be- 
trayed principal — and that principal a people choosing 
a government — may have taken steps to arrest per- 
fidious deputies in their guilty course ! This brief 
sentence presents the father of his country, the sub- 
ject of fatiguing eulogy, in a light in which he is not 
usually regarded. A breach of a public trust is ap- 
proved by him, which cuts the roots of popular govern- 
ment and saps the base of political morals. By it all 
public faith is destroyed, and a fatal precedent set for 
all who were to follow him — a foundation is destroyed! 

" If this fail the pillared firmament is rottenness, 
And earth's base built on stubble. 

But we, who have observed Washington's course since 
he turned politician, know that it is but a further 
development of those Federalist principles which he 
brought from the Convention of 1787, or carried to it. 
It cannot be pleaded in defence, or extenuation, that 
he was deceived as to the character with which a 
delegate was invested by an election, for already he 
had written to James Wilson, of Pennsylvania, that 
the politics of the delegates to the convention, with 



150 The Republic as 

respect to the constitution, would be determined by 
those of their constituents. 1 But we know the real 
issue with Washington was, which he would accept, 
counter-revolution or the constitution ? And he pre- 
ferred the constitution, by whatever means to be 
carried through the conventions, and by whatever 
sacrifices to be purchased. 

Such was the leader of the American revolution ! 
But there is conclusive evidence, derived from an 
independent source, to sustain the opinion that the 
opponents of the constitution formed the majority of 
the convention, if they be judged by the unerring test 
of the politics of the majorities in the counties. The 
texture of the committee of elections, and the recep- 
tion of its reports, determine the character of an 
elected body; and, judged by that assured criterion, 
the convention, when it was organized, was composed 
of a majority of Democrats or Anti-Federalists. The 
committee of elections was constituted of a majority of 
Anti-Federalists, and ex-Governor Benjamin Harrison 
was placed at its head, who was distinguished even in 
those heated times for unwearied opposition to the 
constitution. As we learn from his correspondence 
with Washington, the ground on which Harrison stood 
in that memorable struggle was this : " If this con- 
stitution is adopted, the South becomes the mere 
appendage of the North" ; a bitter truth, to which his 
grandson, President Harrison, appears to be fully 
alive. Contested elections were sent up from five 
counties, and, with but one exception, the seats were 
adjudged to those who voted against the constitution ; 
convincing evidence that the party of James Madison 
did not constitute that committee. 2 The elections had 
been held in March, and according to the terms of the 



1 Jared Sparks' " Writings of Washington." 

2 A list of the members of the convention is appended to 
" The Lost Principle." 



a form of Governnu nt i 5 1 

law the convention was to have deliberated in the 
pleasant month of May ; but the Federalists in the 
legislature contrived to have the time of its meeting 
postponed to June, hoping that its determination 
would be influenced by the action of states more 
favourable to the projected change in government 
than the elections had shown Virginia to be. But for 
the postponed session it was agreed that, by the elected 
convention, the ratification of the constitution was 
hopeless. When assaulted in debate by Henry for his 
change of parties, Randolph admitted that, but for 
the postponed session, he would have voted against 
the acceptance of the constitution, but pleaded that in 
the interval he had been instructed by " the genius of 
America" to vote for it. So by an act of party finesse, 
as by the result of a great battle, the fate of a common- 
wealth was determined. As the convention w r as about 
to adjourn, the Governor supplicated one parting word, 
which amounts to a plea of guilty, as he stood at the 
bar of history. It was addressed to posterity, and, in 
part, to this writer, and is given here in fairness to 
the great culprit. Governor Randolph said : " The 
suffrage which I will give in favour of the constitution 
will be ascribed by malice to motives unknown to my 
breast. But, although for every other act of my life I 
shall seek refuge in the mercy of God, for this I request 
His justice only. Lest, however, some future annalist 
should, in the spirit of party vengeance, deign to men- 
tion my name, let him recite these truths : That I went 
to the Federal convention with the strongest affection 
for the Union ; that I acted there in full conformity 
with this affection ; that I refused to subscribe because 
I had, as I still have, objections to the constitution, 
and wished for a free inquiry into its merits ; and the 
accession of eight states reduced our deliberation to 
the single question of Union or no Union." Governor 
Randolph seems, from this language, to have discarded 
altogether the representative character. But his state- 



152 The Republic as 

ment is not correct ; for the Union was in no danger 
after the accession of eight states. The non-accession 
of Virginia to the Union made another constitutional 
convention a certainty, — Governor Randolph's pro- 
fessed object from the beginning. His constituents 
had peremptorily instructed him at the polls to vote 
against receiving the constitution before it had been 
amended by the states, and he had entered into a 
solemn engagement with them so to act. He says 
that, from motives of policy, as he understood it, 
which had nothing to do with the question, he chose 
to violate the high trust that had been reposed in him 
by them. 

I find in the journal of the House of Delegates of 
Virginia evidence sufficient of itself to convince us 
that the constitution was ratified in opposition to the 
popular will, and that we have discovered from 
Washington's correspondence but a small fraction of 
the deserters. It is one of those unexpected con- 
firmations which truth often receives from collateral 
sources, for the army of facts moves onward in a 
coherent mass. The legislature had held a session in 
June, but two days before the convention adjourned, 
and the members had hurried home to gather their 
harvests. Private interests then, as now, were pre- 
dominant with the elected by the people. The inter- 
course with their constituents instilled into them a 
fiercer opposition to a system which, by such culpable 
means, had been fastened on the commonwealth. In 
October the Houses reassembled, and attacked ratifi- 
cation with great fury. The House of Delegates took 
the lead, resolved itself into a committee of the whole 
House, and, after vehement debate, of which we see 
much in the letters of that date, reported a preamble 
and resolutions. Henry was supreme in the legisla- 
ture, and pronounced at that session a philippic 
against Madison on account of his course in the con- 
vention as leader of the victorious Federal party. 



a form of Government. 1 5 3 

This shows what would have been the fate of the 
constitution had it been submitted to the state legis- 
latures for ratification. 1 The third resolution indicates 
the temper of the legislature, and announces the fact 
that the voters of the state had been opposed to the 
government which the convention had just accepted. 
It in these words: u Resolved, that it is the opinion of 
this committee, that for quieting the minds of the good 
citizens of this commonwealth, and securing their 
dearest rights and liberties, and preventing those dis- 
orders which must arise under a government not 
founded in the confidence of the people, application 
be made to the Congress of the United States, so soon 
as they shall assemble under the said constitution, to 
call a convention for proposing amendments to the 
same, according to the mode therein directed." When 
the preamble and resolutions were reported, the 
Federalists moved to substitute them by a proposition 
that amendments be made to the constitution, to be 
ratified in the mode provided by its fifth article. The 
dividing line between the parties, we see, was un- 
changed. The Speaker put the question, according 
to Parliamentary usage : " Shall the substitute be 
adopted?" In a House of 124 members voting, a 
majority of forty-six votes was given against the 
substitute, which was equivalent to voting against the 
approval of the ratification which had just taken place. 
That legislature had been elected one month after the 
voters of each county had chosen members for the 
convention ; and, when the nature of the proposition 
before the people is considered, with the violent 
passions which it had aroused, no assurance is needed 
that both convention and legislature had been elected 
with reference to the pending constitution. Indeed, 
from the time of its publication, the constitution, 
naturally, had been the absorbing topic of thought 

1 Jefferson's correspondence of that date. 



154 The Republic as 

and discussion, both in public and in private. The 
letters of that time prove this, if any evidence be 
necessary. It was a momentous issue presented for 
the decision of a people attached to self-government. 
In monarchical systems an offended sovereign, by 
exemplary penalties, would have punished servants 
so disobedient and disloyal ; but in the Republic of 
the United States wrong enjoyed an open and inso- 
lent triumph, and a sovereign people, impotent as 
Lear, were remitted to idle protest and worthless 
petition, whilst the minions who had deceived them 
were rewarded and honoured with high office by the 
Federal sovereign who, through treachery, had been 
set over the Union. 1 

1 Mr. Conway admits, with a candour apparent throughout 
his interesting volume, that ratification was carried in the con- 
vention through the breach of the constituent trust by Edmund 
Randolph. He calls him " a recusant," but a harsher name was 
found for him in the popular vocabulary. The biographer of - 
Randolph says : " That Virginia was carried, by a small ma- 
jority, was unquestionably due to the influence and eloquence of 
its governor." ( u Life of Edmund Randolph," by Moncure Daniel 
Conway, p. 109.) Nor does he leave room for doubt as to the 
gravity of Randolph's objection to the constitution, which so 
remorselessly he waived. "He had before intimated to the 
convention [of 1787] that he could not sign the constitution in 
the shape it was then assuming, but he knew that it would become 
the basis of government. It is melancholy to reflect that the 
convention disregarded Randolph's efforts to make the relative 
state and Federal powers definite and unmistakeable. The clause 
he would have added in ink has since been written in blood. . . . 
He agreed to sign if the convention would add a provision for a 
second constitution." Being thus committed to the necessity 
of another convention of the states, when he stood for an elec- 
tion to the Virginian Convention before the voters of Henrico 
county and Richmond city, it was a crime of deepest dye, upon 
any pretence whatever, to have voted for the constitution, and 
persuaded others to vote for it, without that condition precedent 
had been complied with. 



a form of Government. 



<55 



CHAPTER VII. 



T will not be without interest and instruc- 
tion to discover the nature of the influence 
which wrought so great a change in 
x , Governor Edmund Randolph. It will 
*^^£M \ unC over causes which often influence 
popular governments in important crises, and will 
display the fact that, of all throned powers, "the 
people " are most exposed to betrayal by their ser- 
vants ; a truth into which already we have had some 
insight. The period of his exclusion from Federal 
life having expired, his resumed chronicle of its de- 
bates and proceedings, as well as his correspondence, 
informs us that from February 19th, 1787, James 
Madison was again in the Congress of the Confedera- 
tion. Three eventful years had elapsed since the 
exile had left those halls. During that interval, 
Federalism, before so feeble, had become a triumphant 
power. The Federal leader, like an eagle from his 
crag, had watched the Annapolis Convention, and had 
carried it off at a swoop. From that time Federalism 
proceeded from victory to victory : its march was a 
triumphal procession. The legislatures, cozened by 
false promises, and deluded by deceitful hopes, had 
helped the treacherous party to the attainment of its 
ambitious objects. The convention of the states had 
been convoked, had deliberated, had made and pub- 
lished a new government, and he, the false one, 
the most potential agent in producing that change, 
was now in a Federal watch-tower, examining the 
horizon, and reporting to his confederates in the 
North, in the South, and at Mount Vernon, every 
movement that tended to accelerate or retard the 
consummation of the revolution in government which 
had been so successfully begun. By the light of that 



156 The Republic as 

correspondence, and those debates, the character of 
that able but unprincipled statesman can best be 
studied, and the arts of flattery and indirection under- 
stood by which he sought the illegitimate objects to 
which he had devoted his high gifts. In his letters to 
Edmund Randolph, Madison discards reserve and 
avows his purposes. We have stepped a century 
back in the world's history, and are standing now 
amid the architects and joiners of the great Federal 
polity of the modern world, and it cannot but be in- 
teresting to the impartial reader to comprehend the 
means which were employed in that work. The new 
timbers to be used in the remodelled ship of state 
had been discussed by those projectors, and, on the 
occasion now to be mentioned, the measure of repre- 
sentative influence, and a different sanction for the 
Federal plan, claimed attention. The letter from 
which quotation is made was addressed by this wily 
statesman to Randolph from New York, where Con- 
gress was in session, two months before the conven- 
tion met at Philadelphia. " To give the new system 
proper energy," writes Madison " it will be desirable 
to have it ratified by the authority of the people, and 
not merely by that of the legislatures. I am afraid 
you will think the project, if not extravagant, abso- 
lutely unattainable and unworthy of being attempted. 
I flatter myself, however, that they are less formidable 
on trial than in contemplation. The change in the 
principle of representation will be relished by a 
majority of the states, and those of most influence. 
The Northern states will be reconciled to it by the 
actual superiority of their populousness ; the Southern 
by their expected superiority on that point. This 
principle established, the regugnance of the large 
states to part with power will, in a great degree, 
subside, and the smaller states must ultimately yield 
to the predominant will." 

Here, with grim candour, are stated the methods of 



a form of Government. \ 57 

a Republican statesman projecting a new government 
for his country. He has ambition for the strong, 
deception for the trusting, and force for the weak. 
This policy, born of duplicity, was embodied in the 
new structure, drawing down on South section, the 
party to be fooled by an expected but illusory popu- 
lousness, the destruction which comes from bad 
government and the sword ; so that the treacherous 
plots of the politician, in their fruition, often over- 
whelm the states which they serve. But the intrigues 
of those public men of Virginia, acting on a different 
theatre, affords still another example of that disagree- 
able but valuable lesson. If we turn to Madison's 
letters of the date of December 20th, 1787 (one to 
Washington, and one to Jefferson), additional evidence 
is found of Randolph's hostility to the constitution 
and, in the former one, the ground of it stated ; but it 
is not until Madison's letter to Randolph of January 
the 10th, 1788, that we are apprised of the writer's 
bold design to draw the Governor of Virginia over to 
the side of the constitution. Randolph was before 
the voters of the city and county for election to the 
convention. There were yet two months to elapse 
before a choice of delegates was made, during which 
the tempter had time to operate. If his determination 
was influenced by the deceitful logic of his former 
associate in Federalism, Randolph sought the political 
trust with the intention of betraying it. Doubts of 
the Governor's fealty had gotten abroad after election 
day, and Washington, with pleasure, informs a cor- 
respondent : " If the Governor opposes the constitution, 
it will be feebly." In the Republic there was no law of 
treason, and no courts for the punishment of such offen- 
ders, but additional rewards ; and he who should have 
been nailed to the cross was promoted to the highest and 
most lucrative offices in the gift of Washington's ad- 
ministration : for bad faith to the people was fidelity 
to the newly-elected President and his government. 



158 The Republic as 

We will be further enlightened on the politics of 
that remarkable period of Republican history if the 
class of inducements is exposed by which a member 
of Congress seduced a governor of Virginia to pass 
over to the Federal service, deserting that to which he 
was pledged by a popular election. This can only be 
done in the words of Madison's letter. The occasion 
which produced it was the receipt from him of a copy 
of the Governor's address to the legislature, explaining 
the weighty reasons which induced him to withhold 
his vote of approval from the constitution. It displays 
Madison's ability as a writer and his mastery of the 
disingenuous arts of flattery. The obdurate rock, if he 
could not break, he melted by those soft fires. The 
letter goes on to say : " It is to me apparent that had 
your duty led you to throw your weight in the 
opposite scale it would have given it a decided and 
unalterable preponderance, and that Mr. Henry would 
either have suppressed his enmity or been baffled in the 
policy which it has dictated." The discordant objections 
of the opposers of the constitution are brought into 
view, and also the assumed fact that a second conven- 
tion would be composed chiefly of the members of 
the opposition, large sections of which were known to 
favour a division of the Union into subordinate leagues, 
with the ultimate purpose, as was charged, of " re- 
versing the revolution." The rejection of the con- 
stitution, then, the writer said, would only advance 
Henry's " real designs." The letter insists that the 
friends of a good constitution would not only find 
themselves in a second convention differing as to the 
proper amendments, but perplexed and frustrated by 
men who had objects totally different. There was 
still another consideration presented to the mind of 
Governor Randolph which made it indispensable to 
the advocates of a general Union, unless they relin- 
quished that darling object, to have the constitution 
adopted by Virginia in the approaching convention. 



a form of Government* 1 59 

Should it be rejected there, the logician urges, and 
North Carolina coincide in that rejection, as appeared 
most probable, the Union would be exposed to 
^er, let ratification go as it might in the states 
lying north of Virginia. Indeed it was evident, 
>na\ Madison, that the constitution would be 
lost, for South Carolina and Georgia, however much 
inclined to Federalism, would be controlled, on account 
of their detached situation, by the negative action of 
the two powerful states of Virginia and North Caro- 
lina. The letter insisted, that not only the prosperity 
of the Federal party, but the fixedness of the revolu- 
tion and the support of the Union — objects to which 
Randolph avowed his attachment — alike demanded 
that the constitution be now ratified by Virginia. 
But it is probable that the argument of greatest 
weight with the proposed convert, around whom was 
woven these artful toils, was the asserted incapacity of 
the people to form an intelligent opinion as to the 
merits of the constitution, the Federal party proposing 
in that critical juncture of public affairs to become 
guardians of a ward incapable of taking care of his 
estate or of himself. Although the Virginians might 
not be capable, in the opinion of those two statesmen, 
of forming a correct judgment concerning the con- 
stitution, they were fully capacitated to say whether, 
by the circumlocution of a national government, they 
were willing to become the vassals of North section 
and lose independence, a valuable possession under 
whatever form of government to be enjoyed. We will 
hear Mr. Madison, in the fullness of his wisdom, dis- 
course on this interesting subject : "Whatever respect 
may be due to the rights of private judgment, and no 
man feels it more than I do, there can be no doubt 
that there are subjects to which the capacities of the 
bulk of mankind are unequal, and on which they must 
and will be governed by those with whom they have 
acquaintance and confidence. The proposed consti- 



1 60 The Republic as 

tution is of this description. The body of those who 
are both for and against it must follow the judgment 
of others, not their own. Had the constitution been 
framed and recommended by an obscure individual, 
instead of by a body possessing public respect and 
confidence, there cannot be a doubt that, although it 
would have stood in the identical words, it would have 
commanded little attention from most of those who 
now admire its wisdom. Had yourself, Colonel Mason, 
Colonel R. H. Lee, Mr. Henry, and a few others, seen 
the constitution in the same light with those who 
subscribed it, I have no doubt that Virginia would 
have been zealous and unanimous as she is now divided 
on that subject. I infer from these considerations, 
that if a government be ever adopted in America, it 
must result from a fortunate coincidence of leading 
opinion, and a general confidence of the people in 
those who may recommend it. The very attempt at 
a second convention strikes at the confidence in the 
first, and the existence of a second, by opposing in- 
fluence to influence, would in a manner destroy an 
effectual confidence in either, and give a loose rein to 
human opinions, which must be as various and irre- 
concilable concerning theories of government as doc- 
trines of religion, and give opportunities to designing 
men which it might be impossible to counteract." ' 
James Madison was the fourth President of the United 
States, and his opinion as to the false base upon which 
they had put government in America was character- 
istic of the other leaders of the Federal party. It was 
certainly shared by General Washington, when prudent 
reserve allowed him to utter his thoughts on that 
delicate point. He appears early to have formed his 
opinion on that subject, for he thus expressed himself 
in his letter to Harry Lee, to which allusion already 
has been made : " It exhibits a melancholy verification 
of what our transatlantic foes have predicted, and ot 
1 Madison Papers, letter to Governor Randolph of this date. 



a form of Government. 1 6 1 

another thing to be still more regretted, and is yet 

move unaccountable, that mankind when left to them- 
selves are unfit for their own government." 

As Virginia was one of the states in which the con- 
stitution was accepted whilst the people stood in de- 
termined and angry opposition to it, so New York un- 
doubtedly was another state standing in that category. 
That New York was, as Marshall states, dragged into 
ratification, is a fact confirmed by a circular letter from 
Governor Clinton soon to be considered and quoted. 
So that if Virginia had been allowed to reject the con- 
stitution, in accordance with the desire of the majority, 
there can be no doubt that the proposed change in 
government would have been repudiated by New 
York and the Union continued under an amended 
Confederation, and so things would have drifted on 
until the Republican experiment had confessedly failed 
and the states gone back to the mother country to 
enter upon a new destiny. At Poughkeepsie, on the 
26th of July, 1788, the constitution was adopted by a 
majority of three votes. In that ratifying body the 
Federalists openly inculcated their immoral doctrine 
that a delegate, after accepting the representative 
trust, was at liberty to vote according to his inclina- 
tions, a proposition which those speakers assuredly 
would not have inculcated had not their party been 
in a minority in the convention. Hon. Robert E. Living- 
ston opened the debate in this way : " I trust, sir, there 
are many gentlemen present who, as yet, have formed 
no decided opinion on the important question before us, 
and who, like myself, bring with them dispositions to 
examine what shall be offered, and not to determine 
till after maturest deliberation. To such I address 
myself." But the slight and inconclusive majority of 
three votes could not have been obtained for the new 
system had not a subsequent convention of the states, 
for a constitutional revision, been made a condition of 
the compact of ratification. That bargain made the 

M 



1 62 The Republic as 

ratification of the constitution a treaty between the 
parties, the observance of which, it was believed, a 
simple representation of the fact to Congress would 
secure. Governor George Clinton, with whose aver- 
sion to constitutional amendment we are acquainted, 
was made president of the convention when the dele- 
gates were fresh from the people, and the selection of 
so pronounced an Anti-Federalist proves conclusively 
that the convention contained an Anti-Federal ma- 
jority at that time, representing a corresponding 
majority among the voting people. As the president 
of the convention, and by its unanimous order, Clinton 
signed the circular addressed to each state of the 
Union and to the new Congress, the first paragraph 
of which is given : " We, the members of the conven- 
tion of this state, have deliberately and maturely con- 
sidered the constitution proposed for the United 
States. Several articles in it appear so objectionable 
to a majority of us, that nothing but the fullest confi- 
dence of obtaining a revision of them by a general 
convention, and an invincible reluctance to separating 
from our sister states, could have prevailed upon a 
sufficient number to ratify it without stipulating for 
previous amendment. We all unite in the opinion 
that such a revision will be necessary to recommend 
it to the approbation and support of a numerous body 
of our constituents." The protesting legislature of Vir- 
ginia responded to the New York circular in appro- 
priate language : " That the draft of a letter be made 
in answer to one received from his Excellency George 
Clinton, president of the Convention of New York, 
and also a circular letter on the aforesaid subject to 
the other states in the Union, expressive of the wish 
of the general assembly of this commonwealth, that 
they may join in an application to the new Congress 
to appoint a convention of the states under the new 
constitution/' 

There was a wide chasm which separated the Anti- 



a f oiDi of Government. 

Federalists from the Federalists. If the former sus- 
tained themselves in the position, that the constitution 
must be revised by another convention, it was certain 
that the Confederation would be amended and retained 
as a government for the Union, unless, indeed, the 
mention had been broken up by a determination 
of the states to renew without delay their transat- 
lantic connection ; but if the Federalists were suc- 
cesful in having the constitution ratified first, and 
amended afterwards, it was equally certain that no 
amendment would be allowed which affected the frame 
of the government, or diminished its formidable 
strength. Placed on that ground, of ratification first 
and amendment afterwards, it was discovered that the 
Federal party, notwithstanding the alliance of the 
public creditor, would probably be defeated. It was 
necessary that another deception should be practised 
on the conventions, and the dexterous Madison was 
selected to continue and carry it into effect. The 
fraud was this : amendments to the constitution were 
to be treated as conditions subsequent, and to be held 
forth as equally binding on the amending power as if 
they were conditions precedent. The fraudulent de- 
vice succeeded in New York, in Massachusetts, in 
Virginia, and perhaps in other states likewise. 

The convention in Massachusetts was composed of 
heterogeneous elements. Eighteen of the members 
had been in the rebellion with Shays. Parties were 
so divided that the Federalists doubted the result, 
whilst the Anti-Federalists were confident they would 
defeat the constitution by eight or twelve votes. After 
surveying the field, as exhibited by his correspon- 
dence, Madison was satisfied that his party would be 
overthrown unless he could successfully practise this 
new fraud. He writes to Washington : B We must 
take off some of the opposition by amendments. I 
do not mean such as are to be made conditions of 
ratification, but recommendations only. Upon this 



1 64 The Republic as 

plan we may probably get a majority of twelve or 
fifteen, if not more." We turn now to the Convention 
of Massachusetts, about which that letter had been 
written, and learn how the scheme w r orked which 
Madison had devised. Of course there was no merit or 
plausibility in the contrivance, unless members of the 
opposition could be induced to believe that recom- 
mended amendments would be treated as equivalent 
to conditions subsequent, as the lawyers understand 
them. So construed, the assurance might draw off a 
portion of the opposition ; as it was, it was the means of 
having the constitution ratified xA Massachusetts by a 
majority of nineteen votes. John Hancock, of famous 
memory, and the first gentleman in the Union, held 
the fate of the constitution in his hands. He was de- 
deceived by that fraud. Hancock and his following 
voted for the constitution, but as he gave that vote he 
made this explanation of it : "I give my assent to the 
constitution in full confidence that the amendments 
proposed will become a part of the system. " 

November 14th, 1788, the Assembly of Virginia 
adopted a resolution urging upon the new Congress 
the long series of amendments which had been pro- 
posed by the ratifying convention in these words : "In 
the very moment of adoption, and coeval with the ra- 
tification of the new plan of government, the general 
voice of the convention of this state pointed to objects 
no less interesting to the people they represent, and 
equally entitled to our attention. At the same time 
that, from motives of affection to our sister states, the 
convention yielded their assent to the ratification, 
they gave the most unequivocal proofs that they 
dreaded its operation under its present form. In ac- 
ceding to the government under this impression, 
painful must have been the prospects, had they not 
derived consolation from a full expectation of its im- 
perfections being speedily amended. In this recourse 
therefore they placed their confidence We do, 



a form of Gove nunc nt. 1 65 

therefore, in behalf of our constituents, in the most 
earnest and solemn manner, make this application to 
Congress that a convention be immediately called of 
deputies from the several states, with full power to 
take into their consideration the defects of this con- 
sitution that have been suggested by the state con- 
ventions, and report such amendments thereto as they 
shall find best suited to promote our common interests, 
and to secure to ourselves and our latest posterity 
the great and inalienable rights of makind." We may 
form from this extract, taken in connection with 
Madison's letter to Washington, an opinion as to 
the assurances which that dissembler made in the 
Virginia Convention with reference to the binding 
character of subsequent amendments. Here was 
ample cause for Henry's philippic. 

The promised constitutional revision by another con- 
vention of the states was not made, and the amend- 
ments adopted by the conventions and sent to 
Congress were treated with neglect, or only such 
accepted as did not at all affect the excessive juris- 
diction of the government. Mr. Viner summarily dis- 
posed of the amendments, saying: " There are many 
things mentioned by some of the state conventions 
which he would never agree to on any conditions 
whatever ; they changed the principles of the govern- 
ment, and were, therefore, obnoxious to its friends." 
Mr. Gerry had been invited by the Convention of 
Massachusetts to be present at its deliberations to 
give explanations of such parts of the constitution as 
the convention might ask, on account of his member- 
ship of the Convention of 1787, and therefore is a 
witness of credit as to what transpired there. He was 
a member of the new Congress when the amendments 
proposed by the state conventions were brought for- 
ward and so slightingly treated. His remarks bear 
with particular significance upon the declaration of 
President Hancock as he was about to cast his vote 



1 66 The Repitblic as 

for the constitution. Mr. Gerry said : " The ratification 
of the constitution in several states would never have 
taken place had they not been assured that the ob- 
jections would have been duly attended to by Con- 
gress, and I believe many members of those conven- 
tions would never have voted for it if they had not 
been persuaded that Congress would notice them with 
that candour and attention which their importance re- 
quired. " This then forms another title which Madison 
has to be called the father of the constitution. 

It appears that the convention in New Hampshire 
also accepted the constitution, whilst a majority of 
the voting population, as represented in the conven- 
tion, was opposed to the change in government. 
When the body was convened the majority w T as with 
the Anti-Federalists, but enough votes proposed to go 
over to their opponents to have the constitution ra- 
tified, being convinced, as they said, of the superior 
merit of the new constitution by the persuasive rhetoric 
of the Federalists. But timely instructions from their 
towns, such as Washington had dreaded in Virginia, 
withheld them. An adjournment was carried, and, 
when the convention again convened, the constitution 
was approved, as already we know. (Madison Papers.) 

New Hampshire makes the fourth state in which the 
new government was accepted by a convention, whilst 
the people were opposed to the act. But for those 
fraudulent ratifications the constitution could not have 
received its adoption by the complement of nine states. 

There is a show of right in superior power to which 
men submit; there is a native majesty in force to 
which men bow down ; but the Federalists, unable to 
command that, evoked a subtle and wicked fiend for 
their service — fraud — and well did he serve his masters. 
It was by that diabolical agency that the constitution 
was riveted on the people of the Union ; it was thus 
that the cunning circumvented the wise, and the feeble 
overpowered the strong. 




a form of Government. 1 67 

CHAPTER VIII. 

EDMUND RUFFIN, HIS TRAGIC DEATH. 

YEAR or two before the war of the 
sections began, this writer met Edmund 
Ruffin whilst he was engaged in searching 
the archives of the state for information 
touching the ratification by Virginia of 
the Constitution of 1787. When interrogated on that 
subject, he informed me that he knew but little with 
respect to it: " Only this," added Mr. Ruffin, "that 
according to a tradition which had reached him, 

Mr. and Mr. (Mr. Ruffin called the names 

of two distinguished Northern statesmen) brought 
gold to Richmond whilst the convention deliberated, 
and with it purchased a ratification of the constitution 
which now governs the Union." 

Old Edmund Ruffin of Hanover county, one of the 
leading scientific planters in America, as his numerous 
and valuable writings prove, was the honoured patri- 
arch of the Secession party of Virginia. Of an ample 
fortune and honourable connections, he had devoted 
the energies of a strong and inflexible mind and ardent 
temper to the duty of relieving the South of its bur- 
densome connections with the North. He wrote 
much in advocacy of his opinion, displaying it in 
every light, until it had become with him a religion. 
His outspoken and uncompromising politics were 
known and respected throughout South section, but 
were treated with particular favour and honour in 
South Carolina. The military bias of his character 
was decided, and he rejoiced in the battle's tumult. 
That he might serve his country by deed as well as 
by word, he attached himself to an artillery company 
commanded by Captain Delaware Kemper, of an old 



1 68 The Republic as 

heroic blood, first in the onset, first in the pursuit. It 
was Mr. Ruffin's pride that he had fired the first gun 
at Sumpter and the last at Manassas. In cap and 
uniform of gray, and stained with the toil of battle, I 
saw him standing by his gun amid the closing scenes 
of the first Manassas — the sublime old man ! With 
burning eyes and flowing white hair, he looked like 
Nestor in the camp of Agamemnon. 1 

When the Southern cause was lost, he refused to 
survive the independence of his country. He died 
with the serenity of Socrates, and his death deserved 
to be recorded by the Tragic Muse. He was at the 
house of his son in Amelia county when he was 
informed of the surrender of Lee's army, and he 
determined to destroy his life. When the fatal hour 
arrived, visitors had come, and he was too con- 
siderate to agitate them by so painful a tragedy. The 
interval until their departure, as his journal showed, 
he occupied with reading, with writing, and with 
meditation. Heroic Edmund Ruffin ! a conquered 
Republic was not suited to a man of thy mould, and 
thou hast passed over the abyss to the Walhalla. 



CHAPTER IX. 

S its constitution is inseparable from a 
republic, is, indeed, its soul and principle, 
the scheme and theory of that of 1787 
deserves particular attention in this work. 
Its framers intended to place their polity 
in the class of mixed governments, so highly applauded 

1 As I passed Kemper's battery, accompanied by Captain 
Eugene Davis's command of Albemarle cavalry, to engage 
farther in the pursuit, Mr. Ruffin had just discharged his final 
shot at the retreating foe. 



'_ 



a form of Government. 1 69 

by Montesquieu, who by his writings has given so 

great and undeserved popularity to constitutional 
government. The house of representatives was to 

stand for the democratic part of the structure, whilst 
the president represented the monarchical part, and 
the senate the aristocratic part — conforming to king, 
lords, and commons of the English system. Each 
was designed to check or control the action of the 
other departments, except, liberated from the embar- 
rassments of adverse and clashing interests, importu- 
nately urging their claims, they had applied that 
compound government to an unmixed republican 
society. By this studied contrivance it was expected 
to hold in chains the formidable majority power 
ready to dominate, as was seen by the political archi- 
tects, in a republican empire. But a single fact, 
sufficiently obvious, ought to have arrested those 
theorists and imitators. The three principles incor- 
porated in the English constitution had corresponding 
parts in the national body, making the government 
but a reflex of the nation : the royal personage, with 
the important interests which adhere to a crown (for 
both Bolingbroke and Calhoun consider the crown as 
constituting the first estate) ; the aristocracy, a wide- 
spreading and powerful order ; the commons, blended 
of many diverse elements, not naturally antagonistic 
to the lords or to the crown. In the United States 
the body of the nation was not so composed. In that 
new land society knew no feudal divisions — no crown, 
no aristocracy, no commons, at least no commons 
formed and tempered as the commons of England. 
Not only was there no analogy between the struc- 
tures, but dissimilarity marked each limb and fibre. 
Hyperion did not less resemble the satyr than 
England resembled the United States. History in- 
forms us what the Norman Conquest, with its feudal 
appendages, and subsequent events, as modified by 
the practical genius of the Englishman, accomplished 



i yo The Republic as 

in that country. But what materials had an American 
statesman out of which to form composite govern- 
ment ? After the revolution had broken down its sub- 
divisions and its ramparts, and almost swamped society, 
leaving only the shattered fragments of a colonial 
system, he had only an unorganized mass of human 
beings to work upon — a democracy level as the sea, 
and jealous of its exclusive authority. Reason teaches 
that a government ought to conform to the nation for 
which it is made, and be a part of it, even as the 
skin is of the living body, and we are lost in astonish- 
ment that a collection of able statesmen should have 
transplanted to the American nation a government of 
the diversified principles of the Anglo-Norman con- 
stitution. In truth, after the revolution, America was 
adapted only to the government of a monarch who, 
by the plastic hand of power, could have organized 
around him, or to such a loose temporary arrange- 
ment as the Articles of Confederation provided for 
the states. Conservatism, instead of being found in 
the structure of society, was sought by the architects 
of the Republic in the bars and checks of a written 
constitution. Jefferson, the Corypheus of Democracy, 
speaking ex cathedra, instructs M. Marbois in the 
mystery of constructing representative government. 
It is the most curious part of his attractive volume, 
and shows the length to which a theorist will run. 1 
The budge doctor informs his pupil that constitution- 
making is not so difficult an affair after the secret is 
known. He writes : " It is only necessary to provide 
an opposition of parts. There must be different 
houses of legislation to introduce in the government 
the influence of different principles, or different in- 
terests/' But experiment very soon exposed a fact 
of which the theorist had not taken notice. A sea- 
current of opinion swept along in the same direction 
both his houses and the executive also. Upon that 
1 " Notes on Virginia." 



a form of Government. i 7 1 

unstable and tremulous raft the rash schemer was 
ready to embark society in the Old World, as he had 
done in the New. 

But Jefferson, with his impracticable notions about 
government, was not a builder of the American 
temple of constitutional liberty as it raises its gigantic 
proportions before the gaze of mankind, and we will 
best derive the principles of that architecture from its 
master-workmen. We will hear James Wilson first, 
as he is explaining the constitution to the farmers 
and artisans of Pennsylvania assembled in convention : 
44 We are told there is no check in the government 
but the people ; but I apprehend that, in the very 
construction of the government, there are numerous 
checks. Besides those expressly enumerated, the two 
branches of the legislature are mutual checks upon 
each other." Another of the Illuminati, Charles 
Pinckney of South Carolina, who also had been a 
deputy to Philadelphia, thus fluently and easily dis- 
courses on that dark and intricate subject. He too, 
it appears, had read Montesquieu, and, thus equipped 
for statesmanship, says : " The purpose of establishing 
different houses of legislation was to introduce the 
influence of different interests and principles, and he 
thought we should derive from this mode of separating 
the legislature into two branches those benefits which 
a proper complication of principle is capable of pro- 
ducing." We will now attend to Colonel Hamilton, 
with his head full of ideas, — soldier, lawyer, scholar, 
statesman, — as he spins cobwebs of the brain for the 
enlightenment and delectation of the Convention of 
New York : " The great desiderata are free representa- 
tion and mutual checks. When these are obtained, 
all our apprehensions of the extent of power are 
imaginary. What then is the structure of this consti- 
tution ? One branch of the legislature is to be elected 
by the people who choose your state representatives. 
Its members are to hold their offices for two years, 



i 72 The Republic as 

and then return to their constituents. Here the 
people govern ; here they act by their immediate re- 
presentatives. You have also a senate constructed by 
your state legislatures, by men in whom you place the 
highest confidence, and forming another representa- 
tive branch. Then, again, you have an executive 
magistrate created by a form of election which merits 
universal admiration. In the form of the government 
and the mode of legislation you find all the checks 
which the greatest politicians and the best writers 
ever conceived. What more can any reasonable man 
desire ? Is there one branch in which the whole legis- 
lative and executive power is lodged ? No ! The 
legislative authority is in three distinct branches 
properly balanced ; the executive is divided between 
two branches, the judicial is still reserved for an inde- 
pendent body, who hold their offices during good 
behaviour. This organization is so skilfully con- 
trived, so complex, that it is next to impossible that 
an impolitic or wicked measure should pass the 
scrutiny with success." 

The executive department, representing the Crown, 
and considered by Colonel Hamilton a masterpiece 
of political mechanism, consisted of a president chosen 
by a college of electors, who were elected by the states 
in such manner as the legislatures thereof might 
direct. The president divided with the senate some 
of his executive functions. It was confidently ex- 
pected that a president thus chosen would be placed 
beyond the reach of the tides of popular opinion, thus 
securing to the nation the blessing of an independent 
executive authority. But experiment, with its merci- 
less hand, immediately exposed the fallacy of that 
expectation, for the electoral college, when the people 
became the appointing power, was but an urn in which 
the voters deposited their ballots, each voter knowing 
as certainly the candidate for whom he voted, when 
he preferred a particular set of electors, as if his 



a form of Government. i 73 

suffrage had been directly given. From President 
Washington to President Cleveland the college of 
electors has been a conceded sham, and President 
Andrew Jackson, who detested shams, advised that it 
be abolished. 

The democratic power soon asserted its dominion over 
the senate, breaking into that sanctuary of the constitu- 
tion. The senate, where the form of Webster towered, 
and from which, as a rostrum, he addressed a listening 
nation, was designed to be a fortress in which the 
conservatism of the system would find a constant and 
impregnable retreat. The senators, undisturbed by 
a raging democracy, were expected to keep the ship 
well trimmed. To remove him from the people, and 
secure independence, a senator is directed to be 
chosen by a state legislature, but with the growth 
of ideas the legislatures also became popular agencies, 
and the voters are canvassed by candidates for sena- 
torial honours. Of this examples might be adduced. 
The House of Representatives alone has not disap- 
pointed the expectation of its creators. The plan of 
producing counteraction in the government by balanc- 
ing different departments and branches of it has 
proved an absolute failure. There are no opposing 
principles in a democratic system, only different parts 
obeying one imperious will, and no conflict, except 
when the factions are intrenched in different parts of 
the government. Even the judiciary, in its silken 
robes, and fortified by a life term, bends prone to the 
majority power, for Congress and the president can 
reorganize the courts. The triumphant architects, as 
they esteemed themselves, boasted they had extracted 
the principle of the mixed .government of England, 
and had infused it into a Republican body of fresh 
mould, but had left the carcase in its old and wrinkled 
skin to rot on the dunghill. 1 Such was the fine talk 

1 In his " Notes on Virginia " Jefferson exults in the belief 
of the decline of England. But Adam Smith had already ex- 



1 74 The Republic as 

when the constitution was submitted to the states, 
and we smile at the credulity of its projectors. As a 
reproduction in principle of the English system the 
Constitution of 1787 proved as total a failure as that 
which Mr. Locke prepared in the retirement of his 
closet for the royal colony of South Carolina. That 
political curiosity, the product of the speculations of a 
philosopher, was provided with a head to be called a 
palatine, whilst landgraves and caziques, an extem- 
porized nobility, formed a part of a colonial parlia- 
ment. The plan required those nobles to be great 
landlords, but their bountiful creator had neglected to 
indicate from what source their estates were to be ob- 
tained, and also the fortunate families selected to 
compose that new patrician order. It was a figment 
of Mr. Locke's brain, a government on paper, having 
no more relation to the condition of the rude colony 
of South Carolina than to Jupiter, Saturn, or the Sun. 
Having no ground to stand upon — neither cazique, 
nor landgrave, nor palatine — when the time for 
organization came the government could not be in- 
stalled. Its parts were not existent. The American 
government, however, was organized and set in motion, 
but did not fulfil the design of its projectors. President 
Washington surrounded himself with the ceremonies 
of royalty — a mock court ; but four years later Jeffer- 
son, with his democratic broom, swept them all away, 
presenting the Republic in a simplicity as severe as a 
naked Venus. But, in a more important respect, the 
government answered perfectly the object of its insti- 
tution. It created many offices, with salaries and 
perquisites, for the fathers of a renovated Republic, 
and the mercenaries who trooped under their banner. 
Washington was made president ; John Adams was 
made president ; Jefferson, Madison, Monroe, each in 

plained that the loss of her colonies would not diminish the 
commercial wealth of the kingdom in causing a concentration 
on the more profitable home trade. 



a form of Government* 1 75 

his turn, was made president, whilst their retainers 
and henchmen filled other posts in the Federal com- 
monwealth. It was a plenteous harvest, and the reapers 
were many. When Madison asserted in debate, in 
the Convention of Virginia, that under the proposed 
government there would be few office-holders, Patrick 
Henry said it would be otherwise, and that each 
patriot would be provided with his "fine, fat, snug 
Federal office," and very soon the Federal Republic 
declared itself to be the government of the office-holder, 
instead of a government of the people. Indeed, office 
had been the glittering prize which suggested the 
revolution to the American patriots. Those aspiring 
men could not endure the obscurity of colonial life, 
and France proposed a path for their ambition. It 
was from the English government of the period of 
Elizabeth Tudor, or the Stuarts, that the new polity 
had taken its frame, whilst that of the Confederation, 
as we have seen, was borrowed from the Parliamentary 
plan, introduced under the House of Orange, and the 
advocates of each claimed the respectable authority 
of the mother country. 

But there was another contrivance in the constitu- 
tion to annul the force of the majority power which 
we must not overlook, though it may well excite sur- 
prise that, after declaring the divine right of the 
majority to govern society, the American fathers 
should have devised modes to check or] paralyze its 
will. But such is the inconsistency in those who 
establish false theoretical systems. As soon as a Federal 
government was set in motion, the fact became mani- 
fest that a diversity of legislative interests existed in 
different parts of the continent. Out of it arose a 
party, as soon as constitutional reform was agitated, 
who advocated a division of the Federal body into 
partial confederacies, running along the line of these 
contrary interests. As many as three divisions were 
proposed by some of those projectors, but by the 



176 The Republic as 

greater number only two, one for North section and 
one for South section, between whom nature and the 
institutions of society had created an ineffaceable 
difference, a chasm which only political folly or the 
sw r ord could bridge. A pronounced expression of that 
opinion, in the Congress of the Confederation, is con- 
tained in a memorandum in the Madison Papers after 
the period of Madison's exile from that body had 
terminated. The memorandum is in these words : 

" Mr. Bingham alone avowed his wishes that the 
Confederation might be divided into distinct confede- 
racies, its great extent and various interests being 
incompatible with a single government. The Eastern 
members were suspected by some of leaning toward 
some Anti-Republican establishment (the effect of 
their late confusions), or of being less desirous or 
hopeful of preserving the unity of the empire. For 
the first time the idea of separate confederacies had 
got into the newspapers. It appears to-day (Febru- 
ary 2 1st) under the Boston head." 

But after the constitutional convention assembled, 
nothing was heard of any proposal for disuniting the 
states, but only plans were discussed for organizing 
them more strongly into a Federal body, but securing 
particular interests from encroachment by the govern- 
ment, the chief of which was the plan of an equilibrium 
of power between the North and the South. This 
arrangement, brought forward as a substitute for 
several governments, contained a feeble and lingering 
principle of self-government for the South, under the 
Constitution of 1787. But it was erroneous and feeble 
in conception, for it provided a paralysis of govern- 
ment in cases where important interests demanded 
its active patronage. This truth in politics, rendered 
so plain by experiment, appears not to have been 
understood by the framers of the constitution, for 
" the subtlety of nature is far beyond that of the sense 
or the understanding," which Bacon teaches as the 



a f out of Government. 1 7 7 

foundation of his experimental philosophy. If we 
search the debates of the convention, as well as the 
correspondence of Washington, we will find the philo- 
sophy of government, as announced by the Federal 
party, did not not go beyond a provision for a negative 
power, which they sought to introduce covertly in 
their organism by adopting an arrangement suggested 
by the craft of Madison, which would flatter the North 
with the possession of power, and the South with the 
prospect of obtaining it, but which would result as 
was hoped in a substantial balance. They seemed to 
have dreaded to announce in their constitution an 
antagonism of interests between the two sections, 
even by making an acknowledged provision for it. 

As soon as the sections were assembled in conven- 
tion, and the question of power was approached, an 
angry rivalry was produced. North section, with its 
majority of white pupulation, insisted, with customary 
fairness, that whites alone should be admitted to the 
representative basis, but, looking to its own impor- 
tance and safety, South section declared it would not 
confederate with North section unless slaves to the 
full extent of their number were counted also. Am- 
bition opposed ambition, and amidst its agitations the 
convention was held together " by scarce a hair," as 
Luther Martin has informed us. 1 Nothing but the 
apprehension of counter-revolution could have arbi- 
trated with success between those jealous parties. 
The compromise deserves attention, for it was the 
mud-sill of their new Federal structure. It was agreed 
that all free persons should be admitted into the 
Federal number, and such a proportion of slaves as 
would produce, according to the estimate, an equal 
division of Federal power between the North and the 
South. The three-fifths fraction, which had been 
agreed to in Congress as an equal measure of taxation, 

1 " Constitutional Debates in Maryland," Elliot's Debates. 

N 



178 The Reptiblic as 

was applied to representation. So we find in the 
constitution that representatives and direct taxes 
shall be apportioned among the states according to 
that fractional standard. This arrangement in the 
outset did not produce the desired equipoise : it left 
with the North section the majority of the population 
according to the Federal number by the estimates of 
population made by the convention. But a compen- 
sation, or a solace, was not wanting to the South, — a 
dream, an illusive image, a phantasm, but a feature 
of the covenant illustrative of the deceitful contrivances 
of written governments in the United States. In 1787 
strong tides of emigration were flowing from the North 
and East, were business had been broken up by the 
war, to the unoccupied and fertile lands of the South- 
West and South, the region of slavery. If the flow 
continued it would soon redress the inequality, pro- 
ducing either an equilibrium of Federal power, or a 
Southern preponderance in the government, growing 
out of its greater Federal numbers. Southern states- 
men, dazzled with this bright prospect of empire in 
the Union, consented to the compromise, and those 
of the North, who with superior cunning had con- 
trived the compromise, of course consented to it. 

More distinctly than any statement or explanation, 
an encounter in the convention between Mr. Morris 
of Pennsylvania, and Mr. Butler of South Carolina, 
will place this question before the intelligent reader. 

" Mr. Gouverneur Morris : If negroes are to be 
viewed as inhabitants, and the revision to proceed on 
the principle of number of inhabitants, they ought to 
be added in their entire number, and not in the pro- 
portion of three-fifths. If as property, the word wealth 
was right ; and striking it out would produce the very 
inconsistency it was meant to get rid of. The train 
of business, and the late turn it had taken, had led 
him, he said, into deep meditation on it, and he would 
candidly state the result. A distinction has been set 



a form of Government. i 79 

up, and urged between the Northern and Southern 
states. He had hitherto considered this doctrine 
heretical. He still thought the distinction groundless. 
He sees, however, that it is persisted in; and the 
Southern gentlemen will not be satisfied unless they 
see the way open to their gaining a majority in the 
public councils. The consequence of such a transfer 
of power from the Maritime states to the interior and 
landed interest, will, he foresees, be such an oppression 
to commerce, that he shall be obliged to vote for the 
vicious principle of equality in the second branch, in 
order to provide some defence for the Northern states 
against it. But to come more to the point, either the 
distinction is fictitious, or real ; if fictitious, let it be 
dismissed, and let us proceed with due confidence ; 
if it be real, instead of attempting to blend incom- 
patible things, let us take at once a friendly leave of 
each other. There can be no end of demands of se- 
curity if every particular interest is to be entitled to 
it. The Eastern states may claim it for their fishery, 
and for other objects, as the Southern states claim it 
for their peculiar objects. In this struggle between 
the two ends of the Union, what part ought the 
Middle states in point of policy to take? To join 
their Eastern brethren, according to his ideas. If the 
Southern states get power into their hands, and be 
joined, as they will be, with the interior country, they 
will inevitably bring on a war with Spain for the 
Mississippi. This language already is held. The 
interior country, having no property nor interest ex- 
posed on the sea, will be little effected by such a war. 
He wished to know what security the Northern and 
Middle states would have against this danger. It has 
been said that North Carolina, South Carolina, and 
Georgia will, in a little time, have a majority of the 
people of America. They must in that case include the 
great interior country, and everything was to be appre- 
hended from their getting power into their hands." 



1 80 The Republic as 

Mr. Butler replied to Mr. Morris : 

" The security the Southern states want is, that 
their negroes may not be taken from them, which some 
gentlemen within or without doors have a very good 
mind to do. It was not supposed that North Carolina 
and South Carolina and Georgia would have more 
people than all the other states, but more relatively to 
the other states than they now have. The people and 
the strength of America are evidently bearing south- 
wardly and south-westwardly." 

Whilst the Articles of Confederation were being 
framed the Continental Congress had to contend with 
this troublesome subject. The states being equally 
sovereign, — the dwarf being equally a man as a giant, 
— Congress had found it necessary to establish among 
them an equality of suffrage, the effect of which, from 
the greater number of Northern states, was to create a 
Northern preponderance. The South would not pro- 
ceed with the constitution unless, in a certain class of 
important cases, that majority were subjected to re- 
straint. To accommodate that difference the following 
section was inserted among the Articles: "The United 
States in Congress assembled shall never engage in 
war, grant letters of marque and reprisal in time of 
peace, nor enter into any treaties of alliances, nor coin 
money nor regulate the value thereof, nor ascertain 
the sums and expenses necessary for the defence and 
general welfare of the United States, or any of them, 
nor emit bills, nor borrow money on the credit of the 
United States, nor appropriate money, nor agree upon 
the number of vessels of war to be built or purchased, 
or the number of land or sea forces to be raised, nor 
appoint a commander-in-chief of the army or navy, 
unless nine states assent to the same. Nor shall a 
question or any other point, except for adjourning 
from day to day, be determined, unless by the votes 
of a majority of the United States in Congress 
assembled. " 



a form of Government. 1 8 1 

The objection to that form of a sectional equilibrium 
or negative power was two-fold : it did not contemplate 
an increase in the number of Northern states, whilst 
it might be disregarded by a majority in Congress 
fraudulently assuming to act on questions which de- 
manded the vote of nine states. This was no theo- 
retical objection. It had been done when John Jay, as 
Secretary of State, proposed, with the consent of a 
majority of Congress, to make a cession to Spain of 
the navigation of the Mississippi. The question as- 
sumed a threatening aspect, and the negotiation was 
arrested, but it none the less exposed the imperfection 
of the provision as a constitutional security. 1 In the 
Virginia Convention of 1788, when the navigation of 
the Mississippi was debated, upon which the vote of 
Kentucky, then a province of Virginia, depended, 
Patrick Henry bitterly reflected on Jay's conduct as 
corrupt, and Grayson united in the condemnation. 

With this defective arrangement before their eyes 
the Convention of 1787 devised, as they supposed, an 
equilibrium not so easily upset or disturbed; but the 
substitute proved to be even more worthless. We 
see the errors of our predecessors, but are blind to our 
own. The examples, however, are useful in pointing 
out the futility of imposed constitutional limitations 
upon a majority power. After a majority in the out- 
set of the government had been awarded to the North — 
it was a part of the compromise — in order to adjust 
representation to the transfer of population, as pre- 
dicted by Mr. Butler, it was a feature of the compromise 
that there should be a count of the population within 
three years after Congress assembled, and within every 
subsequent term of ten years. Colonel George Mason 
from Virginia, who had supported the compromise, 
remarked that the assumed population of the sections 
would place the government at first under Northern 

1 See Madison's letters. 



1 82 The Republic as 

control, but that a census would redress the inequality. 
The inequality was never redressed, but the Northern 
preponderance continued steadily and rapidly to in- 
crease. When, to disarm his opposition to the consti- 
tution, as it had removed the objection of Colonel 
Mason, that compromise, with its promises and hopes, 
was stated to Patrick Henry, with the intuitive per- 
ception of a statesman of practical genius he replied 
that the Northern majority in such a government as 
has been framed would find means to retain their 
superior populousness and invite more population from 
abroad, and thus hold fast to their power. 

The new constitution was without power to have 
itself installed as the supreme authority in the Union, 
and must continue to be a lifeless body until acted 
upon by some superior external force. All that a 
State legislature could do, to help the new monarch to 
his throne, was to provide for the election of delegates 
to the House of Representatives, to choose two senators, 
and to appoint presidential electors. An abyss still 
separated the two constitutions. The Congress of the 
Confederation was the only power that had a sem- 
blance or pretence of authority to act throughout the 
Union. But in that case the Congress had no consti- 
tutional right to act, the Federal Articles making no 
provision for a revolution in government. Yet it did 
not hesitate to assume the required jurisdiction. As 
president of the convention, and by its unanimous order, 
Washington, on the 17th September, 1787, addressed 
to the President of Congress a letter submitting the 
constitution to Congress, an act for which the instru- 
ment itself had made no provision nor the Articles of 
Confederation given any authority. But the Congress, 
co-operating in its own destruction, and violating the 
organic law out of which it had arisen, sent the con- 
stitution to the legislatures to be submitted to conven- 
tions of the states. As soon as a ratification by eleven 
states had been communicated to Congress, that body, 



a form of Government. i )>$ 

on the 13th of September, 1788, passed a law declaring 
the first Wednesday in the succeeding January to be 
the day for appointing electors in the several states 
which had ratified the constitution ; that the first Wed- 
nesday in the next February should be the day for the 
electors to assemble in the states and vote for a presi- 
dent and vice-president ; and the first Wednesday in 
the succeeding March should be the time, and New 
York city the place, for setting up and starting the 
new government. Thus the chasm was bridged, thus 
the revolution in government was perfected, — the Con- 
gress of the Confederation in its expiring acts violating 
both the constitutions. 




CHAPTER X. 

THE SECTIONAL EQUILIBRIUM IX CONGRESS. 

N our second chapter, with some fullness, 
it was shown that the principle of self- 
government in America, so far as it was 
contained in the right of secession, the 
groundwork of the liberty system, was 
crushed out of the Federal constitution by brutal 
force : in a subsequent chapter, that previously self- 
government, in a more practical and developed form 
in the state system of government, created by the 
Federal Articles, had been overthrown by a conspiracy 
of politicians, the impotent voters being opposed 
to the revolution. In following the thread of this 
history, and in the progress of this work, it will be 
our task to discover now whether the equilibrium of 
sections, the untried substitute for self-government 
provided in the new constitution, answered its pur- 



1 84 The Republic as 

pose, or whether it too was destroyed by its enemies 
or perished of its infirmities. When we have ascer- 
tained that the equilibrium failed in design from these 
combined causes, the final inquiry will remain whether 
the sectional power, which immediately intruded in 
the place of this just arbiter, has governed the Union 
fairly and prudently ; or whether, obeying the strong 
impulse of selfishness and ambition, its course of un- 
checked power has been characterized by abuses and 
wrongs to its dependents, which commonly proceed 
from illegitimate and unrestrained authority. 

In 1789, as Hamilton previously had been, John 
Randolph, the young patrician and heir of Roanoke, 
had been attracted to New York city by the educa- 
tional advantages which it offered. His distinguished 
social position in Virginia, as a shoot from the house 
of Bland, and heir to the name and great property of 
Randolph, united to splendid and diversified talents, 
introduced him to the society of the men who had 
come to inaugurate the new Federal apparatus. Thus 
it came to pass, as he said, that " he saw the young 
eagle take its flight." l The fourth day of March 
being the time appointed by Congress for the assembly 
of the two legislative bodies that were to be heir to its 
abdicated jurisdiction, a small number of senators and 
representatives appeared to take seats in the bodies 
to which, respectively, they had been delegated. From 
their fewness they could not execute the intention of 
Congress, and, being animated by a wish contrary to 
that which had actuated the convention at Annapolis, 
they adjourned from day to day persistently for 
twenty-seven days, which brought the first day of 
April, when, a sufficient number of members being 
present to form a quorum, the House of Representa- 
tives of the new Federal legislature was duly 
organized by the election of Frederick Augustus 
Muhlenburg of Pennsylvania to the chair of speaker, 
1 Garland's " Life of John Randolph of Roanoke." 



a form of Government. 1 8 5 

thus, in the outset, securing to North section that 
stronghold in legislation. It was not until the sixth 
day of the month that the appearance of Colonel 
Richard Henry Lee, from Virginia, gave to the senate 
its quorum, which enabled it to elect a temporary 
president of the senate, that the ballots for president 
and vice-president might be counted, as the constitu- 
tion directed. At first the prospect was disheartening, 
and the senators elect, who had assembled at the 
rendezvous, caused circular letters to be addressed to 
other senators elect, in the nearest states, urging their 
immediate'attendance on Congress. But the members 
were so slow in dropping in, that as late as April 9th 
Mr. Tucker from South Carolina, of the House of 
Representatives, stated that he was the only member 
in that branch of the legislature from the entire region 
south of Virginia. Washington did not come to New 
York to help the new government by the authority of 
his presence, but, with a caution that was habitual 
where his own prestige or interests were concerned, 
hung back, reluctant to connect himself with an enter- 
prise that looked so inauspicious. He did not leave 
"the shades of private life" until the senate, by its 
messenger, notified him of the successful organization 
of the government and of his election to the great 
office of president of the Union. 

The tardiness shown by the members of Congress 
in repairing to New York is referable to a cause which 
deserves a place in history, as it betrays the irresolu- 
tion of the victorious party, and their doubts of an 
ability to inaugurate the new government 'after the 
prize of ratification had been won. The cause of the 
irresolution, of the doubt, of the hesitation, was the 
conditional ratification which the constitution had 
received in New York, connected, we must believe, 
with the indignation which possessed the public mind 
produced by the betrayal of the representative trust 
by which the constitution had been carried through 



1 86 The Republic as 

the Virginian and other conventions. But there was 
another cause combined with those causes. When a 
ratification was about to be procured at Richmond 
by means so illegal and immoral, Patrick Henry- 
announced his purpose to withdraw from the con- 
vention, and " go home " to call upon the people to 
resist a yoke about to be fastened upon them by the 
Federal party. He did not go home. He did not 
raise the standard of resistance, which would have 
crushed the viper before it w r as fully hatched. And 
now we come to the politician again. George Mason 
of Gunston Hall, whom nature had made for a hero, 
had grown cautious with advanced years. He refused 
to unite in Henry's brave policy, and the moment was 
too critical to hazard by disagreement the unity of 
the States Rights party. Mason's plan, which was 
adopted, was to suffer ratification to run its course, 
but, by concerted action, to prevent an organization 
of the government in the mode w r hich was attempted, 
which it was supposed the superior strength of the 
Anti-Federalists in the states could effect. It was a 
dilatory and weak policy, and was naturally rewarded 
with failure. The crisis called for action, before which 
the coward Fraud would have slunk away; but Mason 
met it by intrigue, in which he was no match for the 
practised Madison and his handy lieutenant. The 
Anti-Federalists from every state met for consultation 
in Richmond and adjusted a line of action, but it broke 
down as soon as Lee made a quorum for the senate, 
and a soldier became president of the Union. The 
new Federal power was prepared then to take the 
field against its enemies, and establish courts for the 
punishment of treason. So resulted the expiring oppo- 
sition to the Constitution of 1787, until President Davis 
attempted to overthrow the usurper. Let it stand for 
a monument of the triumph of banded politicians over 
the unorganized masses of the people, whose servants 
they profess to be, but whose masters they are. 



a form of Government. I 87 

It would have been a contradiction in politics for 
the constitution to ordain population as the basis of 
power — the constitution being an ordinance intended 
to control the government — and at the same time to 
confer on it jurisdictions which would enable it to dis- 
turb so fundamental compromise as the equilibrium 
of sections. Unless the fathers of the new-made or 
new-plumed Republic were very inexpert artists, every 
part of their work must have been designed with 
reference to that foundation, for the sections, in their 
wide-extended arms, embraced every interest in the 
Union. Every compact of the constitution and every 
understanding must have been subordinate to it, and 
every construction must have yielded to it as a master 
rule, for it is absurd to say that a constitutional super- 
structure is to have no relation to the sub-structure. 
It is a matter of history, if we are so to class the 
Madisonian Debates, that as soon as sectional power 
in the assembled states was touched the strongest 
passions were aroused. On the authority of Madison 
it is currently stated, and generally believed, that the 
compromise of senatorial representation was the most 
difficult compact in the constitution to adjust, but, on 
the better authority of his reported debates, we know 
the fact to have been otherwise. The sections, as 
the constitution and its history show, were the real 
parties to the Union, the states being but their subor- 
dinate parts, and what Morris declared in his encounter 
with Butler is sufficient to prove it. But if other evi- 
dence be sought to establish the same fact, it may be 
found in a speech of Madison in the convention, when 
he advocated the fractional basis of three-fifths be- 
cause it would establish an H equilibrium " between the 
North and South. If we understand the constitution 
by the light of its own words, as they flowed from the 
pen of Governeur Morris, we cannot fail to be struck 
with the fact that no jurisdiction or authority is con- 
ferred on Congress to enable it to interrupt the flow 



1 88 The Repttblic as 

of population, none to create employments to attract 
it to particular sections or to hinder its egress from 
them. It is true the ninth section of the First Article 
prohibits Congress from forbidding emigration, or im- 
portation, of such persons as the states may choose to 
admit, prior to the year 1708, but authorizes to be 
collected a tax or duty of ten dollars on each person 
so imported. But Madison's reported debates explain 
this anomalous feature in the constitution. The 
foreign slave traffic, which the article embraces, though 
it would appear not to be confined to it, would have 
been stopped by an edict of the constitution, in accor- 
dance with Virginia's earnest desire, but for the ener- 
getic and combined remonstrance of Massachusetts 
and South Carolina, those old associates and partners 
in smuggling and the slave trade, the consignor and 
consignee in that profitable business. South Caro- 
lina said a plentiful supply of cheap slaves brought 
to her doors was necessary to the drainage of her 
rice swamps, which occasioned an enormous con- 
sumption of life, whilst the Puritan, who stood at the 
other end of the line, frankly stated that the new 
constitution would not receive a vote in New England 
if it closed that source of opulence. The times, he 
said, were hard, and if his people were to be deprived 
of the slave trade, as they had been damaged in other 
branches of their external commerce, they would be 
compelled to go into bankruptcy. It was this double 
consideration which caused the exception to be ad- 
mitted in the constitution. It was a compromise 
which the Federal party made to get votes for the 
constitution, but was a departure from the sectional 
compromise, and stood on its own grounds. But it 
was an equipollent force. If it gave population to 
the South, it gave a corresponding measure of wealth 
to the North. It did not produce a sensible distur- 
bance of the arrangement between the sections, 
because of the death-rate mentioned by Cotesworth 



a form of Government. 189 

Pinckney, who stood manfully by the slave trade ; for 
men die, but money lives. That this would be the 
result was known to the convention when it stamped 
the constitution with an approval of a commerce which 
the morality of a subsequent Congress treated as 
piracy — an ungenerous judgment for the heir to pro- 
nounce on the ancestor from whom he inherits the 
estate. But the practical fathers thought it more 
politic to license the slave trade than to incur the 
enmity of the American Puritan. 

When we revisit the fountains of the great Republic 
we experience the emotions of a Humboldt as, amid 
the eternal rocks of the Andes, he stands at the head- 
springs of the Amazon, or of a Stanley as he dis- 
covers, in the swamps and jungles of Africa, the mys- 
terious sources of the mighty Congo river. But before 
we trace the impetuous flow of that great stream of 
political life, a criterion of success must be agreed on. 
Edmund Burke says liberty in itself is not good ; 
its quality depends on the circumstances which accom- 
pany it ; and the same may be said of every form or 
development of political power. The working of the 
Republic may be regarded as successful if grants or 
prohibitions of power in the constitution and laws are 
respected, and the weak, equally as the strong, receive 
patronage from a great and bountiful sovereign. This 
reasonable test mankind jealously apply to monarchy, 
and justice applies it to the Republic of the United 
States. Our first inquiry would naturally be, whether 
the important and fundamental compact of sections, 
inserted as a foundation in " the great treaty," as 
the constitution has been well called, 1 was observed 
by the first Congress whose '• annals " w r e open now 
for inspection. 

Without doubt it is remembered by the reader that 

1 " The Union, Past and Present, &c," by Hon. M. R. H. 
Garnett. 



1 90 The Republic as 

notoriously and avowedly the protection of the sec- 
tional equilibrium was not afforded to the South 
section in the start of the government, nor for three 
years, when a census would be taken, the Southern 
delegates and ambassadors being content during that 
interval to intrust their country to the honour of the 
slave-traders and smugglers of the old Norse land 
and its natural allies, as Governeur Morris represented- 
the strictly Northern Middle states as being, — a thing 
which they would not have done in respect to the 
slightest of their private concerns. Ambassadors less 
credulous where the stakes were empire, would not 
have trusted those severe moralists, without a suffi- 
cient security, for one session or for one day of 
Congress, the Congress being armed with the mighty 
powders of legislation, unchecked in their exercise 
except by the words of a charter which they might 
construe or bend about at pleasure ; for the mind 
that construes, not the hand that writes or the will 
that adopts, is the true law-maker. Sage ambassa- 
dors would have objected that the equilibrium if 
established finally, and it be allowed to arbitrate be- 
tween the sections, it may come too late, for it is not 
in the nature of a negative force to repeal fatal or in- 
jurious statutes. Perhaps South section trusted that as 
Washington, witness and party to the solemn covenant 
between the sections, would be the first president, he 
would protect the agreement by his veto. If the 
Pinckneys and the Butlers, with the Randolphs, the 
Madisons, and the Masons, so believed and so trusted, 
they leaned on a broken crutch. Hamilton, in his 
Report on the Finances, dictated and outlined the 
domestic policy of Washington's administration, of 
which he was the day-star and glory. The inaugural 
address did but utter truth w T hen it said of the pre- 
sident's civil faculties : " That he had inherited inferior 
endowments from nature and was unpractised in the 
duties of civil administration." Inexperience, igno- 



a form of Government. 1 9 1 

rancc, and a blind trust made him the pliant tool of 
Secretary Hamilton and a compact array in Con- 
gress, the Northern phalanx — as soon it got itself 
called, with its lances turned always to the enemy — 
that worked in concert with him, to subject, through 
the silent and irresistible agency of law, South section 
to North section — the reluctant, bitter, exhausting 
servitude of the purse. When Alexander Hamilton 
was a member of the old Congress, he said : " I know 
General Washington intimately and perfectly." That 
intimate and perfect knowledge acquired in the camp, 
where the hearts of men are seen, by that magician's 
skill in reading the characters and influencing the acts 
of others, became the means by which the executive 
power of a great government was made subservient 
to the designs of a mercenary and grasping congres- 
sional faction. In his analysis of the principles of 
government, Calhoun instructs us that monarchy is 
moved by power, but the republic by influence ; A and 
we have before us the example of an unhappy people 
destroyed by influence. Not altogether ; influence 
went before, but the pitiless sword completed its 
unfinished work. Oh ! far better Caesar with his 
legionaries, or Cromwell w r ith his pikemen, for op- 
pressed and ruined South section, than a president 
girded and guarded by a phalanx of politicians in- 
tercepting the light from shining on their prisoner's 
soul. Caesar would have restrained her liberty, but 
preserved her independence : Washington destroyed 
both. 

The first and hardest blow struck at the equilibrium 
of sections by the Northern phalanx, was the enact- 
ment of Federal duties to protect Northern manufac- 
tures and shipping from foreign competition in the 
American markets. The avowed object of that un- 
expected and unprecedented policy in the Union 
was to afford a monopoly of the domestic market to 
the classes engaged in those industries to the extent 



192 The Republic as 

of the home supply. The profitable occupation thus 
afforded in every town and district of the East and 
North at once stopped the outflow of population 
moving to occupy vacant lands in the Slave section, 
as was foreseen and predicted by Patrick Henry. 
The bountiful hand that gave millions of wealth to 
North section gave also to that favoured part of the 
Union the means of maintaining its ascendency in the 
government, for it was in a condition to receive that 
great boon from Congress ; whilst to the other section 
a protective policy was valueless ; facts fully appre- 
ciated by the sectional majority, as soon we shall 
hear from one of their leaders. During the period 
intervening between 1783, when the war closed, and 
1789, when the reform government was set in motion, 
manufactures had been established on an enlarged 
scale in the North and East, fostered by state laws. 
They produced all the necessary and ruder articles of 
consumption, such as Adam Smith tells us will spring 
up in a country without encouragement from govern- 
ment, out of the accumulations from other employ- 
ments, if capital and labour cannot be more profitably 
engaged. In the South section, blessed with a softer 
climate and richer soil, with a plentiful supply of 
labour, agriculture engaged and rewarded the industry 
of every hand and the expenditures of every purse. 
Whilst it afforded homes to those engaged in it, it 
was an agreeable, independent, and profitable occu- 
pation. There the protective system of Hamilton 
and his phalanx operated as a burdensome tax. If 
the Southern consumer^used Northern manufactures, 
or hired Northern ships, he increased Northern wealth 
and multiplied the inducements of the Northern 
emigrant to remain at home ; but if he hired a foreign 
ship, or purchased the products of a foreign loom or 
forge, he paid a tax to the government to the exonera- 
tion of the Northern tax-payer who used the domestic 
manufacture. For this heavy burden upon the South 



a form of Government. 1 9 3 

the government provided no compensation, but offered 
only broken covenants, disappointed hopes, and 
blighted prospects. A cotemporary record places 
this subject in the strongest light, and affords addi- 
tional weight to the arguments of Honourable John 
Randolph Tucker and his associates in debate in their 
able attacks in Congress upon tariffs of protection. 
It consists of a speech of Oliver Ellsworth, in the 
Connecticut Convention of Ratification, who thought 
it more effective to debate the constitution as it would 
operate upon the personal fortunes of his hearers, and 
points the road to wealth and political control if the 
constitution were adopted. He had been one of the 
framers of the constitution, and, by consequence, was 
a Federalist in politics. Later Mr. Ellsworth was a 
senator in Congress, and by force of his position and 
talents a head man in the phalanx, and afterwards 
was the Chief Justice of the Supreme Federal Court. 
His words possess, therefore, a peculiar significance. 
Mr. Ellsworth said : 

" In these states we manufacture one half our 
clothing, and all our tools of husbandry ; in the 
Southern they manufacture none, nor ever will. They 
will not manufacture, because they find it more pro- 
fitable to cultivate their lands, which are exceedingly 
fertile. Hence they import almost everything, not 
excepting the carriages in which they ride, the hoes 
with which they till the ground, and the boots which 
they wear. If we doubt the extent of their importation 
let us look at their exports. So exceedingly fertile 
are their lands, that one hundred large ships are every 
year loaded with rice and indigo from the single port 
of Charleston. The rich return of these cargoes of 
immense value are to be all subject to the impost. 
Nothing is omitted ; a duty is to be paid upon the 
blacks which they import. From Virginia the exports 
are valued at one million sterling per annum. The 
single article of tobacco amounts to seven or eight 

O 



194- The Republic as 

hundred thousand. How does this come back ? Not 
in money ; for the Virginians are poor to a proverb 
in money. They anticipate their crops ; they spend 
faster than they can earn ; they are ever in debt. 
Their rich exports return in drinkables, eatables, and 
wearables. All these are subject to the impost. In 
Maryland their exports are as great in proportion as 
Virginia." 

As soon as the political machine was ready for 
work, Madison, now a member of the House of Re- 
presentatives, — he had been defeated for the senate 
by Grayson, — brought forward the scale of duties 
proposed by the Congress of 1783 to the states, simply 
a revenue tariff, which would start the government 
on the track of free trade. His reasons were given in 
the language of moderation and justice, but were not 
received with favour by the Northern phalanx. There 
were men who had come to the Federal rendezvous 
with very different objects from enacting revenue 
tariffs. They saw, lying at their feet, a helpless 
victim, with fields teaming with the materials for an 
export trade, as described by Oliver Ellsworth, and 
they were determined to use all the powers of the 
government that construction could afford to make 
it pay heavy tribute to North section on the return 
cargoes. In that rough school of experience — the 
South section would learn in no other — they would 
teach Southern statesmen the meaning of American 
liberty (a new production in the world), the value of 
representative institutions, and the great prize awarded 
to the North in a Southern president — a Southern 
man with Northern principles. With insulting scorn 
they pushed aside Madison's five per cent, ad valorem 
tariff, and constructed one bearing the title of " pro- 
tection," and designed to enrich, as well as to support, 
the principal branches of Northern industry. In debate 
this object was avowed. Mr. Hartly of Pennsylvania 
proclaimed that he desired the protection of the in- 



a form of Govcrnmcn t. 195 

dustry and capital of the North to be adopted as a 
fixed policy of the new government, whilst the opinion 
was echoed along their ranks by the phalanx acting 
as chorus. Massachusetts, aglow with the zeal of 
avarice, pressed to the front to have a hand in origi- 
nating the legislative spoil system, being devised for 
the impoverishment of the neighbours and country- 
men of Washington, whilst he was occupied with 
settling a Court etiquette. Massachusetts said she 
was not willing to be taxed on the importation of 
molasses, from which she made rum, but demanded 
that her own rum should be fenced about from com- 
petition with Jamaica rum, which, though of a su- 
perior quality to her own, could be sold cheaper in 
the American market. Molasses was connected with 
the two most profitable employments which her people 
then carried on — the trade in fish to the West Indian 
Islands, and the trade in African slaves (the Moors), 
which they sold to the Southern planters. Fisher 
Ames, the orator of the first Congress, explained the 
whole business. 1 

Their summer fish were vended to the West Indian 
planters as food for their slaves, and molasses was 
taken in exchange. That was converted into rum, at 
the distilleries of New England, and with it slaves 
were purchased for Carolina and Virginia from 
Guinea, Loango, and the mouth of the Congo. Penn- 
sylvania sought protection for manufactures of steel, 
which, it was insisted, could not maintain themselves 
without help from government ; nor could her paper 
mills, which annually turned out seventy thousand 
reams of paper. Connecticut had manufactures of 
woollens and manufactures of cordage, which humbly 

1 When the French Directory demanded money from the 
United States, Fisher Ames, who was in Congress, exclaimed, 
in one of the finest utterances of the orator, "We have millions 
for defence, not a cent for tribute." The sentiment electrified 
the Union, and unmasked a regicide Republic. 



196 The Republic as 

she petitioned the All-Giver to protect; for, she said, 
unless the American consumer were made to pay for 
those articles a higher price than that for which they 
could be purchased in the general market, those " in- 
fant industries" would perish. New York, by the voice 
of Mr. Lawrence, demanded that every article which 
her people were able to manufacture should be pro- 
tected by custom-house duties. 

It is obvious that those interests stood in direct 
opposition to commercial retaliation, the purpose of 
which was to make free trade the object with the 
renovated and invigorated Federal nation. Proposi- 
tions having retaliation for an object, the phalanx, 
with all its influence and power, discountenanced and 
voted down. The whale and cod fisheries, also patro- 
nized by the Puritan branch of the phalanx, were sur- 
feited by Federal bounties. But the great interest 
fostered by the generous and omnipotent patron was 
navigation, from the fishing-smack to the largest 
vessel of commerce. The statute-book groaned under 
tjie weight of tonnage duties. By this legislation the 
perishing agriculture of the South was pressed to the 
earth by unaccustomed burdens, that Northern in- 
dustry might prosper exceedingly, and the flow of 
population southward be entirely stopped by the time 
the first census came to be taken, and new estimates of 
Federal power made, — the ambitious, ultimate object 
of Hamilton's tariff of protection. 

Mr. Bland, from Virginia, explained the operation 
of the protective tariff: " You certainly lay a tax on 
the whole community, in order to put money in the 
pockets of the few, when you burden importation with 
a heavy impost." 

We will now cast an eye upon the condition of 
Southern agriculture upon which these new weights 
were imposed. Mr. Tucker, from South Carolina, 
protested against the projected protective system, and 
presented a dolorous picture of agriculture at home 



a form of Government. 1 9 7 

upon which the phalanx were binding new burdens : 
i% The situation of South Carolina was melancholy ; 
while the inhabitants were deeply in debt, the pro- 
duce of the state was daily falling in price. Rice and 
indigo, decreasing in value, were becoming so low in 
price as to be considered, by many, objects not worthy 
of cultivation." But indigo and rice, as the expression 
was understood by the phalanx who had usurped the 
legislation of the Union, did not belong to the class 
of Americian industry. The South section, thus im- 
paled by the phalanx, looked to the executive veto 
for protection, but the despotic Hamilton controlled 
the veto, though Washington officially held it. 

At a later period of this examination the reader 
will be informed in what manner the phalanx acted 
when Benton, the senator from Missouri, at this time 
an Indian wild, proposed to embrace indigo in the list 
of protected articles, as if to make proclamation to 
the nations how unworthy to govern society an elected 
majority is, and how disastrously the selfish principle 
works in government. At the bottom of every poli- 
tical organization there is a vigorous life-principle 
which assuredly will make itself felt, and its goodness 
or badness is to be judged by the result. Monarchy 
is based on the parental principle. Like a mother, it 
cherishes the feeble as well as the robust ; whilst 
the Republic is moved by the strength of majorities, 
who neglect all interests but their own. In the lan- 
guage of Satan in the poem the majority proclaims : 

11 Riches are mine, fortune is in my hand ; 
They whom I favour thrive in wealth amain, 
While virtue, valour, wisdom sit in want." 

Let us turn to the Constitution of 1787 to discover 
whether the sectional legislation of the first Congress 
derived any colour of authority from any of its pro- 
visions — for our subject demands from us an exami- 
nation of a fundamental law. First, and mainly, we 



1 9 8 The Republic as 

will examine that part which invested the new govern- 
ment with a jurisdiction to lay and collect import 
duties, the principal tool with which the phalanx 
laboured. That power, we find, was treated as a 
branch of the taxing apparatus, and was conferred for 
the attainment of objects legitimate to other taxation. 
The purpose of the taxing authority is particularly 
stated in the constitution to be : " To pay the debts, 
provide for the common defence and general welfare 
of the United States." For the attainment of these 
objects Congress is invested with power "to lay and 
collect taxes, duties, imposts and excises." * These are 
words of limitation, as every enumeration is, and they 
cannot fairly be taken out of their just meaning. 
They were not intended to confer, and do not confer, 
power to make the consumer pay, through the opera- 
tion of protective tariffs, an additional price that the 
producer may become wealthy and his section power- 
ful. Among the objects proposed by Federal amend- 
ment that was never stated to be one. 

To pay the debts of the United States, and enable 
government to comply with other demands on the 
treasury, was the avowed and only object of the states 
in the cession of the custom - house to the central 
authority. It contemplated, as we are aware, no other 
purpose. It was believed a five per cent, ad valorem 
duty would produce the greatest amount of revenue, 
the point in the scale of duties which the partizans of 
free trade contend it is the duty of Congress to search 
for. Mr. Ellsworth estimated that that duty would 
give Congress two hundred and forty-five thousand 
pounds sterling, which, he affirmed, would pay the 
entire interest on the foreign debt, and satisfy almost 
every other current national expense. But for the 
obstructive temper of the Governor of New York, or 
more likely his pursuit of an unavowed policy, that 

1 Article I. section 8. 



a form of Government. 199 

free trade tariff would have been established by an 
edict of the constitution for twenty-five years, which 
would have determined the commercial policy of 
the Federal nation, and established on firm ground 
that branch of American liberty. The schedule em- 
braced all the articles produced by the manufactures 
of that day which entered into the American import, 
and practically would have ousted the legislatures of 
their jurisdiction over the custom-house. We cannot 
doubt that from 1783 to 1787 the states were solici- 
tous to establish free trade as the law of their union, 
and make it the foundation of their new organization, 
and, by the vindictive power of retaliation, to compel 
foreign tariffs, so far as they concerned America, to 
conform to that policy. Slight obstacles divert the 
impetuous flow of the Mississippi, as the ill-humour 
of Governor Clinton turned from its course the power- 
ful current of opinion which the philosopher of Kirk- 
caldy had originated in America by the invincible 
reasoning of the "Wealth of Nations." Twice has 
America endeavoured, by a fundamental ordinance, 
to declare free trade to be the policy of the Union, 
and twice have the politicians baffled her. Nobody 
contended that it was the mission of Federalism to 
establish monopolies in the land, but, on the contrary, 
to render free trade the common law of the great 
West. 

In 178 1 Jefferson states the policy of Virginia in 
respect to foreign commerce, and afterwards, when 
President Washington's Secretary of State, he re- 
peated, almost in the same words, the policy to be 
applicable to the Union: "Our interest will be to 
throw open the doors of commerce and to knock off 
all its shackles, giving perfect freedom to all persons 
for the vent of whatever they may choose to bring into 
our ports, and asking the same in theirs." In one 
breath, by one of his mouths, Hamilton makes Wash- 
ington utter the sentiment of a protectionist, but 



200 The Republic as 

Jefferson, another of his mouths, commits him to the 
most latitudinous free trade doctrines. So imperfect 
were the President's ideas on which to conduct a 
government, or so great his desire for popularity, that 
he introduced the leaders of the opposite factions in 
his cabinet. But he learned better after a while, and 
then threw himself wholly into the arms of the 
Northern phalanx. 1 It is from Madison's speech, in 
the first Congress, that we extract the fullest expres- 
sion of views on the policy on which he contended the 
new government was pledged to be embarked : 

" In the first place, I own myself to be a friend to 
a very free system of commerce, and hold it as a 
truth that commercial shackles are generally unjust, 
oppressive, and impolitic ; it is also a truth that, if 
industry and labour are left to take their own course, 
they will generally be directed to those objects which 
are the most productive, and this in a more certain 
and direct manner than the w r isdom of the most en- 
lightened legislature could point out. Nor do I think 
the national interest is more promoted by such re- 
strictions than the interest of individuals would be 
promoted by legislative interference directing the 
particular application of its industry. In my opinion 
it would be proper also for gentlemen to consider the 
means of encouraging the great staple of America 
— I mean agriculture — which, I think, may justly be 
styled the staple of the United States, from the spon- 
taneous production which nature furnishes, and the 
manifest advantage it has over every other object of 
employment in this country. If we compare the 
cheapness of our land with that of other nations we 
see so decided an advantage in that cheapness as 
to have full confidence of being unrivalled. With 
respect to the object of manufactures other nations 

1 This was the real cause of the ejection of Secretary Ran- 
dolph from Washington's cabinet. See the " Life of Edmund 
Randolph," by Moncure Daniel Conway. 



a form of Government. 20 1 

may, and do rival us ; but we may be said to 
have a monopoly of agriculture. The possession of 
the soil, and the lowness of the price, give us as much 
a monopoly in this case as other nations and other 
parts of the world have in the monopoly of any article 
whatever ; but with this advantage to us, that it can- 
not be shared or injured by rivalship." ] 

Agriculture being embarked on the same bottom 
with free trade, Madison, with his accustomed ability, 
states the policy upon which the planters and farmers 
of America desired their Federal government to enter ; 
and to enable it to do so was the principal object of 
the new constitution. From the view heretofore taken 
of opinion in the states, as well as of the action of the 
Congress of the Confederation and the legislatures, 
every advocate of the new constitution was justified 
in the belief that the amended Federal power would 
adopt the mixed taxation which, in 1783, Congress 
had recommended to the state legislatures, and which 
Madison, in part, proposed to the new r Congress in 
1789 — those very taxing powers, except in larger 
measure, having been given in the new constitution 
which before had been so earnestly solicited by the 
Congress of the Confederation. There is no reason to 
doubt that such was the understanding of both the 
political parties w r hilst Federal reform was agitated, 
and that it was the understanding of the Federal 
party when they made the Constitution of 1787. In 
aid, indeed in confirmation of that presumption, there 
is a fact lying on the surface of the Constitution of 
1787, when we are made to understand what it sig- 
nifies, and why it was placed there. That fact is as a 
device emblazoned on a shield ; it is a cipher left in 
the constitution to explain its meaning on this in- 
teresting point. We know the slave trade, as long as 
it was the principal commercial interest of the North 

1 " Annals of Congress," vol i. 



202 The Republic as 

section, and until other industries grew up to take its 
place, was licensed by the conscript fathers, and that 
during the period of toleration a tax, or duty, of ten 
dollars on each person imported was allowed to the 
Federal treasury. It was a tax for revenue, as Mr. 
Ellsworth testified in the Connecticut Convention, and 
this is the history of it. It was agreed among the 
experienced slave-traders and slave-buyers, who 
founded the American Republic and organized its 
fundamental law, that a duty of ten dollars on each 
imported negro slave would amount to a five per cent. 
ad valorem duty on the average price of a slave at the 
American port of admission. By this expedient it was 
intended to tax the slave trade with the horizontal 
duty designed to be exacted from other branches of 
the import commerce. This fact, lying so prominent 
on the surface of the constitution, decides the question 
of intention as to the establishment of free trade as a 
national policy; but we are surprised that, in a written 
government, no security should have been taken to 
compel an observance of it. But those statesmen, in 
their inexperience and simplicity, and knowing that 
the taxing power had been conferred in the constitu- 
tion only for purposes of revenue, trusted to the 
power of words, to the honour of statesmen, and to 
the restraint of an official oath. It stands on the most 
reliable testimony that such was the meaning of the 
ten-dollar tax. Elias Boudinot, from New Jersey, 
though not a member of the Convention of 1787, was 
a great man of the North section in the Congress of 
1790, and understood very well what he talked about. 
Mr. Boudinot said : " He was well informed that the 
tax, or duty, of ten dollars was provided instead of 
the five per cent, ad valorem, and was so expressly 
understood by all parties in the convention.'' 

Rawlins Lowndes, in the Convention of South Caro- 
lina, opposed the constitution with zeal, courage, and 
ability, predicting the disasters and humiliations which 



a form of Government. 203 

its acceptance would bring on South Carolina and the 
rest of the slave region. In his indiscriminate war- 
fare he attacked the ten-dollar tax on the import of 
persons, because, as he averred, there was no corres- 
ponding imposition laid on the imports of North 
section. Pierce Butler, who broke no inglorious lance 
with the intellectual Gouverneur Morris, having been 
at the gendering of the constitution, replied to the 
exception taken by Mr. Lowndes. " The ten-dollar 
tax," he explained, " was intended to pay the five per 
cent. impost." 

The lawyers have a wise proverb, that " The execu- 
tion is the life of the law," so that the actual force of 
a written constitution is the interpretation which it 
receives when it comes to be put in action. We do not 
resort to the utterances of the dead fathers, as to the 
tomb of a revered saint ; we go to the statutes, and 
the courts, and there we find a protective system 
standing immovable on a foundation of free trade. 
That is what the constitution practically is. In veri- 
fication of the conjoint testimony of the constitution, 
and the history which preceded and accompanied it, 
I cite with pleasure and respect the authority of 
Honourable Samuel J. Randall, a protectionist leader 
in Congress, and at this day a great man of North 
section. In a speech which not long ago he made in 
Kentucky, in the city of Louisville, the able and dis- 
tinguished statesman said : " I do not believe there is 
in the constitution of the United States an authority 
to levy import duties for protection's sake ; I can find 
nothing which gives authority to Congress to raise 
taxes on imports for protection per se" This admis- 
sion is enough for the argument, as the title of 
Hamilton's and Washington's tariff was " protection 
for American industry," and that, Mr. Randall admits, 
was without the authority of the constitution. When the 
lost cause of free trade was a militant power, Calhoun, 
the champion of every distressed truth, challenged the 






204 The Reptcblic as 

Protectionist party in Congress to enact a law laying 
duties avowedly for protection, declaring that its 
constitutionality would be contested in the Supreme 
Federal Court. The challenge was not accepted, and, 
with honourable frankness, Mr. Randall supplies us 
with the reason. John Marshall, in the glory of his 
great intellect, then presided in the Supreme Court, 
and Cain, the fratricide, could have had a fair trial at 
that bar, and, more assuredly, a section of the Union 
oppressed by the burden of unconstitutional taxes. 
The party of legislative spoils preferred a disingenuous, 
but safer course. They entitled their spoliation bills 
" revenue " tariffs, and under that cover and false 
pretence — that lie — by discriminations introduced pro- 
tection. It is but the highwayman turned into the 
pickpocket. 

It was but adding an insult to an injury when the 
phalanx borrowed from the British navigation law the 
old badge of colonial subjection, the principle of their 
American system. That famous statute of Parliament, 
as Burke and Adam Smith explain it, was founded on 
the principle of colonial monopoly : its avowed object 
being in favour of the British manufacturer and shipper 
to exclude the foreigner from participating in the im- 
port and export trade of the colonies. The export, by 
an interdict of the constitution, the phalanx were for- 
bidden to touch, but those skilled economists knew 
that, by an understood law of trade, the export goes 
with the import, and that a nation cannot receive the 
one without it supplies the other. As the upshot of 
the revolution South section discovered, under the 
operation of this new protective system, that they had 
been remitted to the old commercial vassalage, but 
under a harder master — " The American system " — 
which made them aliens and outcasts of the law in 
their own homes. With that code of commercial ex- 
action, dignified with the name of liberty, the South 
resembled a slave dressed in the shining robes of 



a form of Govern men t. 205 

Harlequin. After the Stamp Act and its kindred en- 
actments were all repealed, leaving only the quiddity 
of the tea duty to stand as a claim of empire, the navi- 
gation laws were the only grievance of the colonies, 
and, logically, Daniel Webster attributed the revolu- 
tion to them. But the monopoly was greatly mitigated 
by the contraband trade, which, being justified by 
American opinion, was conducted along the entire sea- 
board upon the most extended and prosperous scale. 
It was the overflowing of a surcharged river, and Burke 
excused it in Parliament. There was no semi-indepen- 
dent nation at every creek and harbour — as during 
the reign of the navigation laws, conniving with the 
smuggler and sharing his profits — to lighten the weight 
of the American law. Oliver Ellsworth, as a Con- 
necticut man, assumed to speak for New England, and 
said : " Smuggling is a business too well understood 
among us, and is looked upon in too favourable a 
light " ; and the debates in the first Congress disclose. 
the fact that many an old smuggler was marching in 
the phalanx. Characters, who should have been con- 
demned to the galleys, were legislators in a regenerated 
Republic ; and Boston, now the seat of culture and 
wealth, was, at the period of which I write, little better 
than a nest of smugglers and slave-traders, — when. 
John Adams spouted liberty in Faneuil Hall. Wise 
governors of nations and empires — by exemptions and 
bounties, and even by custom-house duties, when the 
protected employments are seated in the midst of 
consumers who, by a refluent wave, partake of the 
created prosperity — cherish particular branches of 
industry to render a nation independent of the foreign 
supply, exposed to the vicissitudes of war or non-inter- 
course ; but they do not, by a code of blackmail, outlaw 
non-protected industries. Not Rob Roy, when he lifted 
cattle in the Lowlands, was more a spoliator than the 
import and tonnage duties of Congress have been to 
the plantations of Carolina, Georgia, and Virginia. 



206 The Republic as 

Calhoun called those duties brigades sent forth each 
season to harvest the crops of the South into the 
garners of the North, and his language was not too 
strong. At first, as whining mendicants and suppli- 
ant beggars, those "infant " industries knocked at 
the doors of Congress ; but grown wealthy and strong, 
the sturdy beggars demand protection as a right, and 
the government is embraced and smothered by the 
clasping arms of such parasites. Honourable John 
Randolph Tucker, of Virginia, and Honourable Frank 
Hurd, of Ohio, two able and disciplined champions of 
free trade in Congress, inform us that the greatest 
enormities of the protective system are to be found in 
the existing tariff statute, which we know a great 
money power, grown up like an upas tree in the Re- 
public, prevents from being repealed or materially 
modified. A momentous fact has worked to the sur- 
face of American politics : not the multitudinous voters 
of the North and West control the Republic, but their 
money centres and machine politics abet and confirm 
the unlineal sway. They control the Congress, the 
courts, the legislatures, and even the sovereign ballot ; 
for when a presidential election comes around in its 
short cycle of four years, a purse is made in New York 
or Philadelphia, with tributary streams from other 
sources, to -purchase pivotal states, and the transaction 
is as open, and deemed as honourable by local opinion, 
as any of the Exchange, or as the sale of the empire 
in the camp of the Pretorians was looked upon in de- 
generate Rome. Such is American liberty at the 
close of the first centennial era ; such the slums and 
pools of nastiness into which it is dragged ! The 
Republic is yet in the green tree, but when autumn 
arrives, with its sere and yellow leaf, the soldier will 
camp, not near the Capitol, but in the Senate House. 
The protective system did not stand unassisted to 
check the outflow of population from the Northern 
hives. The funded debt of Congress, as stated by 



a form of Government. 207 

Secretary Hamilton, created a cash capital in the 
North to be embarked in all profitable enterprises, 
and was rendered more available and powerful by a 
national bank, branching into every state, for which, 
as is now agreed, there was not the slightest warrant 
in the constitution. A proposition had been made 
in the Convention of 1787 to empower Congress to 
charter a Federal bank, but the power was peremp- 
torily denied to Congress. This fact appears from the 
record of the proceedings of the convention kept by 
Judge Yates, a deputy from New York, until 
Federalism drove him in despair from that body. 
But no trace of it can be found in Madison's report 
of the debates and proceedings of the convention. 
Did he expunge it from his notes because he too when 
president had signed a bank bill ? The fact must have 
been remembered too by Hamilton, when, in his report, 
he advocated the constitutionality of a bank law ; and 
by Washington also, when he signed the legislative bill 
recommended by Hamilton. Alas ! alas ! all poli- 
ticians are alike. 

The slavery restrictions applied to the territories of 
the Union, a legacy from the Confederation, was another 
policy by which the representative power of South 
section in the Federal government was still further 
curtailed. There was a convulsive effort made by the 
South to obtain and preserve an equilibrium or balance 
of the states in the senate, but it resulted finally in 
victory to North section. The contest began with the 
application of territorial Missouri, whose constitution 
legalized slavery, to be admitted as a state of the 
Union. The slave power triumphed in that case, but 
a compromise, a black line, coinciding, it was con- 
tended, with a climate line, was drawn through the 
territories of the nation which the slave was forbidden 
to cross, as though the climate line, had it existed, 
was not sufficient. As an equivalent to Missouri, 
Maine, a part of Massachusetts, was admitted as a 



2o8 The Republic as 

free soil state, Massachusetts in the ardour of party- 
strife submitting to dismemberment. For a time it 
was the policy of Congress to admit the states in 
pairs, in accordance with which rule or compromise 
Michigan and Arkansas, arm in arm, entered the 
Union. Benton in his " Thirty Years' View " gives an 
interesting account of that fierce struggle. 

Never was a more splendid marriage portion given 
than North section received at the hands of the new 
government. The constitution conferred on it power, 
the phalanx gave it riches. No one can comprehend 
the Republic of America who does not understand it 
as made by the constitution construed by the phalanx. 
When President Lincoln sent armies and navies to do 
his bloody work of coercion the Southern people could 
understand it, for other nations had been consumed 
by the torch and smitten with the sword; but they 
did not comprehend, and do not now comprehend, 
how their ruin was accomplished in accordance with 
a system of self-government and liberty. 

By many letters, found in his correspondence, Presi- 
dent Washington was informed of angry discontents 
produced in Virginia by the sectional legislation of 
Congress. One of those letters said : " If Mr. Henry 
has sufficient boldness to aim the blow at the new 
government which he has threatened, I think he can- 
not meet with a more favourable opportunity ; but I 
doubt whether he possesses so adventurous a spirit." 
Harry Lee, the father of the Confederate General 
Robert E. Lee, was a staunch friend of ratification. 
He had served the Federal party in the Virginian 
Convention, and was a representative which it sent to 
the first session of the new Congress, but he had 
returned home in ill-humour with the power which he 
had helped to install, and, with the ready hand of a 
soldier, was prepared to undo his work. A corres- 
pondent from Virginia of March, 1790, writes to the 
President in this agreeable vein : t( A spirit of jealousy, 



a form of Government. 209 

which may become dangerous to the Union, towards 
the Eastern states, seems to be fast growing up 
amongst us. It is represented that the Northern 
phalanx is so firmly united as to bear down all oppo- 
sition, whilst Virginia is unsupported by those whose 
interests are similar to hers. It is the language of 
all I have seen on their return from New York. Colonel 
Lee tells me that many who were warm supporters 
of the government are changing their sentiments, 
from the impracticability of union with states whose 
interests are so dissimilar to those of Virginia. 
I fear the Colonel is one of the number/' But the 
leaders of the Federal party got together, surveyed 
the prospect, and assured General Washington that 
his government would not be disturbed. Henry, they 
said, had grown old, and was too much engaged with 
making money to embark in another revolution. 1 
So the phalanx continued to raven South section, 
with the co-operation and approval of the father of his 
country. 

Before we take leave of it, we will have another 
look at the equilibrium of sections. It was accom- 
panied and balanced by an equilibrium of direct tax- 
ation, both made to depend on a count of the people. 
George Mason, the lord of Gunston Hall, made a 
census the condition of his support of the compromise. 
He was certainly an able speaker, and in those days 
was called a wise man. I quote his words : " With- 
out it the Southern states will have three-fourths of 
the people of America within their limits, yet the 
Northern will hold fast to the majority of representa- 
tives. The Southern states will complain, but they 
may complain from generation to generation without 
redress. Unless, therefore, some principle which will 
do them justice be inserted in the constitution, disa- 
greeable as the declaration was to him, he must 

1 A note to Sparks' " Writings of Washington." 
P 



2 io The Republic as 

declare he would neither vote for the system here, nor 
support it in his state." As so great importance was 
attached to a census, the inquisitive and watchful 
reader will inquire what precautions were taken by 
the convention to secure in the sections a correct enu- 
meration of their population. When representation 
came to be apportioned in the constitution between 
the sections as a temporary basis of Federal power, 
the Southern members accused those from the North 
of making extravagant estimates of their population : 
did they insist on no precaution to be inserted in the 
constitution, against extravagant counts of it, when 
census time arrived ? Dreamers all ! They were rocked 
in the cradle of a false security ! No security was given 
by the North, no security was demanded by the South, 
except the worthless and childish security that direct 
taxes were to be apportioned by the measure that 
ascertained the number of representatives, so that if a 
false count of population gave to the North section a 
great preponderance of political power, it would be 
liable to pay a proportional share of direct taxes. 
But if the government ceased to be supported by 
direct taxes principally, or supported at all by 
them, the security vanished, and the slave-traders 
and smugglers, the manufacturers and tonnage-duty 
men, could count as they liked. Such a statesman 
as Ellsworth or Wilson, or the gallant Hamilton, 
must have smiled at the earnestness with which the 
lord of Gunston Hall insisted on the possession of a 
shadow. 

The fifty-fourth number of the " Federalist/' from 
the pen of the acute and logical Madison, thus com- 
mends and explains this part of the constitution : 

"In one respect the establishment of a common 
measure of representation and taxation will have a 
salutary effect. As the accuracy of the census to be 
obtained by Congress will necessarily depend, in a 
considerable degree, on the disposition, if not co- 



a form of Government. 2 1 1 

operation of the states, it is of great importance that 
the states feel as little bias as possible to swell or 
reduce the amount of their numbers. Were the share 
of representation alone to be governed by this rule, 
they would have an interest in exaggerating their in- 
habitants. Were the rule to decide the share of taxa- 
tion alone, a contrary temptation would prevail. By 
extending the rule to both objects the state will have 
opposite interests, which will control and balance each 
other, and produce the required impartiality." This 
exquisite argument, obtained from the imagination of 
a great statesman and constitutional reasoner, was 
answered in the first Congress. So much for the 
forecast of the logician in practical statesmanship ! 
Operating through the phalanx North section con- 
ferred on itself eighty millions of dollars, the discounts 
of a national bank, and advantages in the fields of 
industrial enterprise more valuable still. The North 
thus enriched, and the South thus impoverished, the 
former could well have afforded at each decennial 
census, by false. counts of population, to purchase a 
further lease of Federal power. When it came to 
pass that the government subsisted on the products 
of the custom-house and of the sale of public lands, 
it should have occasioned no surprise to Madison 
certainly that the phalanx continued to hold the 
reins of government. 

The written constitution is the production of specu- 
lation and ingenuity, and will contain assuredly some 
uncovered point, some vital imperfection, which will 
cause its design to be defeated. It would be difficult 
to find of this truth a more instructive illustration 
than the sectional equilibrium. It is matter of pure 
conjecture what result would have ensued if the pro- 
jected equipoise had taken place. Assuredly there 
would have been no collisions of the sections, but 
when not on sectional ground the government would 
have been one of the numerical majority, and ex- 



212 The Republic as 

posed to all the objections which attach to creations 
of that character. It must not be forgotten that an 
equipoise is only a negative, a self-protecting force' 
and cannot produce a positive result. In a subsequent 
chapter this subject will be touched again, and ex- 
amples afforded. 




•CHAPTER XL 

HIS chapter of our book will contain a 
view of self-government in America even 
less encouraging to imitators and admirers 
than the preceding one ; and will excite 
surprise, and perhaps indignation, in the 
breast of the reader. The protective system, in its 
excesses, presents a picture of rapine and extortion — 
the robber taking the property of a victim he has 
overpowered ; but now we have before us an instance 
of plighted faith dishonoured continuously, that an 
equal partner in the enterprise of government might 
be reduced to a tributary. The policy of the phalanx, 
in the struggle for congressional dominion, was two- 
fold : to encourage enterprise at the North by all the 
rewards and stimulants of industry, but to suffer 
Southern capital and labour to languish under their 
old burdens, but with a new burden imposed upon 
them. It was an excellent opportunity, which was 
not lost, to teach the baron of the South, surrounded 
by his swarthy dependents, what it is for a people rich 
in the productions of the earth to be subjected to the 
legislative authority of another, and to dispel the day- 
dreams which flickered around him. By this double 
system — of action and refusal to act — the Northern 
man would become wealthy and powerful, whilst all 



a form of Government. 2 1 3 

the gifts of a bountiful Creator would be contravened 
and annulled to the Southern man by the wasting 
hand of bad government. This is the way in which 
the majority power, with its asserted divine right to 
govern society, discharges its political obligations. 
Let emperors and kings survey the work of their 
fellow sovereign, and be instructed in the high philo- 
sophy of the Republic, and let the people who are 
protected by their sceptres be satisfied with their lot. 
Let them see by what crooked paths democratic 
ambition, guided and intensified by avarice, attains 
its goal. 

If the reader, seeking to penetrate to the marrow of 
the subject, would have set before him very vividly 
another example of the working of this erroneous 
principle of government, he is referred to the seventh 
chapter of Lecky's " History of England in the 
Eighteenth Century," between pages 225 and 246, 
Appleton's American edition. He will see there that 
the power and vigilance of the paternal Imperial Par- 
liament, which presumed to call itself a government 
for Ireland — although an Irish parliament then existed 
— were employed by the merchants and manufac- 
turers of England to destroy utterly corresponding 
rival interests in Ireland, sustaining classes, cities, and 
provinces, that they might monopolize the home 
market, although that heartless statesmanship carried 
in its dejected and squalid train depopulation, desola- 
tion, pestilence, and famine. It may be received as a 
truth, established by experience, that, whether in the 
wide area of America or Europe, if classes, or com- 
binations of them, be armed with representative power, 
this pernicious principle in politics will produce the 
same blasting results. In the American Congress it 
was a Northern phalanx, in the Imperial Parliament 
it was an English phalanx which played the greedy 
tyrant ; and if a constitution were conceded to the 
demands of the Nihilist, there would be created soon 



214 The Republic as 

a Russian phalanx to plunder or destroy minorities. 
To be a political minority under that kind of govern- 
ment is to be divested of the rights of human nature, 
and be relegated to a condition of slavery ; for when 
the profits of a man's capital and labour are handed 
over to another by the silent operation of unjust law, 
he is a slave, although the purest blood of Caucasus 
pours through his veins. 

The revocation of the Edict of Nantes threw fifty 
thousand French Protestants on the shores of England. 
They were received as the victims of oppression 
always have been in that hospitable country. But 
the intolerance of avarice was as cruel as the bigotry 
of religion, and in its effects enriched and strengthened 
foreign nations as greatly. The historian of the 
Eighteenth Century thus continues his sad but in- 
structive narrative, that the people as well as their 
rulers may be informed as to the action of this short- 
sighted principle of government : 

" The result was that a steady tide of emigration 
set in, carrying away all those classes who were most 
essential to the development of the nation. The 
landlords found the attractions of London and Bath 
irresistible. The manufacturers, and the large class 
of energetic labourers who lived upon manufacturing 
industry, were scattered far and wide. Some of them 
passed to England and Scotland. Great numbers 
found a home in Virginia and Pennsylvania, and they 
were the founders of the linen manufacture in New Eng- 
land. Others, again, went to strengthen the enemies 
of England. Louis XIV. was in general bitterly 
intolerant to Protestants, but he warmly welcomed, 
protected, and encouraged in their worship Protestant 
manufacturers from Ireland who brought their industry 
to Rouen and other cities of France. Many others 
took refuge in the Protestant states of Germany, while 
Catholic manufacturers settled in the northern pro- 
vinces of Spain, and laid the foundation of an industry 



a form of Government. 2 1 5 

which was believed to be very detrimental to Eng- 
land." ' 

When peace returned and the sea was cleared of 
British cruisers, we have not forgotten that Southern 
agriculture craved but a single boon of the political 
power — to be protected from the exclusions and ex- 
actions of the commercial codes of foreign states. We 
remember that planters and farmers, restive at being 
poor in the midst of bursting granaries, had tried the 
effect of independent state action, but that it had 
increased the evils from which they suffered. A great 
Federal party arose, promising a new era for agricul- 
ture, if jurisdiction over the foreign trade were given 
to Congress — the common, and, as was asserted, the 
impartial agent of the states. After a struggle, the 
like of which no other nation can parallel, the work 
as projected by Hamilton and recommended by 
Washington was accomplished. A Federal autocrat 
was created by the great Reform party, every high 
jurisdiction of government having been bestowed on 
him. Not Olympian Jupiter in that regard was more 
potential. That compact with the Federal power, 
originating and accompanying the constitution, was 
audaciously and wickedly violated by the new Congress 
sitting at Washington's feet, and basking in his ap- 
proving smiles. 

James Monroe, a deputy from Virginia to the Con- 
gress of the Confederation, a good man of his class 
and a rising politician, was one of the public men to 
whom the renovated Union fell heir. In compliance 
with instructions sent by the delegating power, the 
Legislature of Virginia, he brought in a resolution in 
respect to the depressed foreign trade of the country, 
a melancholy note ever sounded in the ear of the 
government. It was referred to a committee, who, in 
May, 1785, two years before the commercial jurisdic- 

: Vol. ii. p. 283. 



2 1 6 The Republic as 

tion was transferred to Congress, reported upon it in 
the words following, to wit : " We behold the several 
states taking separate measures in pursuit of their 
particular interests, in opposition to the regulations of 
foreign powers, to defeat the regulations of each other. 
There is no plan of policy into which they can sepa- 
rately enter which they will not be separately interested 
to defeat, and of course all their measures must prove 
vain and abortive. But, if they act as a nation, the 
prospect is more favourable to them. The particular 
interest of each will then be brought forward and re- 
ceive a Federal support." The report was graciously 
received by Congress, and placed among the archives 
of the government, where it now is, to bear witness to 
the promise made to Virginia and to the other states, 
that Congress, if intrusted with the coveted power to 
regulate their foreign commerce, would protect the 
particular interest of each state against the hostile 
custom-house duties of Europe and other parts of 
the globe. 

What says the Federalist on that subject, as it ex- 
pounded the meaning of the constitution and the 
compromises on which it was founded ? Its eleventh 
number holds this encouraging but deceptive language : 
" By prohibitory regulations extending at the same 
time throughout the states, we may oblige foreign 
countries to bid against each other for the privileges of 
our market. The assertion will not appear chimerical 
to those who are able to appreciate the importance to 
any manufacturing nation of the markets of three 
millions of people increasing in rapid progression ; 
for the most part exclusively addicted to agriculture, 
and likely, from local circumstances, to remain in this 
disposition. Suppose, for instance, we had a govern- 
ment in America capable of excluding Great Britain 
from all our ports ; what would be the probable opera- 
tion of this step upon her politics ? Would it not 
enable us to negotigate, with the fairest prospects of 



a form of Government. 2 1 7 

success, for commercial privileges of the most valuable 
and extensive kind in the dominions of that kingdom ? " 

This eleventh number, renewing the pledges of the 
Congress of the Confederation as equally binding on 
the proposed government, and making them an in- 
ducement to its adoption, was from Hamilton's pen. 
He holds out the belief that agriculture and commerce, 
11 the two breasts of the state," were to continue under 
the new government to be the pursuits of America, 
and that an energetic policy of commercial retaliation 
would be adopted to insure their prosperity. But, as 
the head man of Washington's administration, he for- 
got his engagements to agriculture and commerce, and 
produced a fraudulent heir to the state. Acting in 
his proper sphere, as a gentleman and a lawyer, 
Hamilton was a mirror of knighthood, but the corrupt 
and grasping politics of the phalanx, to which he was 
allied, and the crooked ways of the Federal party 
generally, induced him to act an uncandid part in this 
case, and out of tone with his noble and high-strung 
nature. 

Washington was a planter, w 7 hose extensive interests 
were spread into many counties and sections of the 
state. He was moved by a love of gain, as well as by 
patriotism, to restore the values of agriculture. On 
this subject his correspondence is voluminous, fre- 
quent, and interesting, and exhibits the strong desire 
of his class to have government armed with a power 
to retaliate on the injurious trade regulations of foreign 
states. To La Fayette, the confidant of his opinions, 
hopes, and apprehensions, he writes : " Whenever we 
shall have an efficient government established, that 
government will surely impose retaliatory restrictions 
upon the trade of Great Britain. At present, or under 
our existing form of confederation, it would be idle to 
think of making commercial retaliations upon our 
part. One state passes a prohibitory law respecting 
some article, another state opens wide the avenue for 



2 1 8 The Republic as 

its admission. It was in vain to hope for a remedy for 
these and innumerable other evils until a general 
government is adopted." As planter Washington 
argued, so argued every other planter and farmer in 
the Union. There was a diapason of voices that w r ent 
up from every neighbourhood in favour of giving to 
Congress in some form, and under some conditions, 
the power of commercial retaliation ; and, when men 
saw those powers placed in the new constitution, it 
went further to reconcile them to it than all other 
causes, so strong is the desire of gain in an unprosper- 
ous people. 

The three productions of the South, upon which the 
trade laws of Europe acted with peculiar severity, 
were the tobacco of Virginia and Maryland, and the 
indigo and rice of the Carolinas and Georgia ; for the 
cotton plant had not yet been introduced. These im- 
portant interests had been left by the phalanx to 
languish under the new government, as they had done 
under the inefficient Confederation. No treaty, no 
regulation, was made for their advantage by the domi- 
nant faction in Congress. In the family of states 
those commonwealths were treated as Hagar in the 
family of Abraham. Neglect and oppression was the 
only portion of South section, whilst arrogant North 
section monopolized all the advantages of the new 
government. It was the story of Goneril and Regan 
repeated. The Yankee had come with his tenders of 
a political marriage ; the South was beguiled by the 
treasonous offer, and tasted the fair pernicious fruit, 
and the gates of Paradise were closed against her. 
Monarchs destroy individuals who have offended them, 
but republics devastate provinces and sections by 
neglect, by oppression, or by the sword. 

As soon as the new system was in working order, 
Madison brought the subject of commercial retalia- 
tion to the attention of Congress in these impressive 
words : 



a form of Government, 2 1 9 

" He contended, as agriculture was the great staple 
of the United States, it was the duty of the govern- 
ment to foster and protect it by every power with 
which it was armed by the constitution. Retaliation 
was the only means by which that object could be 
accomplished, and that it was the main inducement 
that led to Federal reform. We shall soon be in a 
condition, we are now in a condition,'' he said, "to 
wage a commercial warfare with Great Britain. The 
produce of this country is more necessary to that 
country than that of other countries is necessary to 
America. If we were disposed to hazard the experi- 
ment of interdicting the intercourse between us and 
the powers not in alliance, we should have overtures 
of the most advantageous kind tendered by those 
nations. If we have the disposition, we have abun- 
dantly the power to vindicate our cause." 

So spoke Baldwin and other members of Congress 
from the South. In a brief special message the som- 
nolent executive acknowledged this obligation to be 
imposed on the government. In 1793 Madison took 
a yet more decided step, and brought into Congress a 
bill "for the regulation of our foreign commerce." The 
phalanx mustered its forces and defeated the bill, and 
we hear no more of that historical subject until a 
period not long before the Civil War, when Honourable 
T. F. Bowie, of Maryland, moved in Congress on the 
subject of the tobacco interest. But the phalanx, 
grown stronger, collected its clans again, and got the 
disagreeable subject out of the national legislature 
by having it referred to the diplomatic action of the 
government, which had been charged with it under the 
Articles of Confederation — the period when Virginia 
instructed James Monroe to bring the subject to the 
attention of Congress. The fact is, instead of the 
promised free trade in tobacco, the foreign duties 
had been increased in severity, the Congress with its 
new commercial jurisdiction, the President, and the 



220 The Republic as 

nation, sitting inactive spectators of the oppression. 
This is the way in which a minority interest is treated 
in a republic. 

Tobacco is truly a historical subject in the United 
States. It was a strong co-operative, if not the prin- 
cipal force, in making the Revolution of 1776, it was 
the cause that set on foot the Constitutional Revolu- 
tion in 1787, and it should receive consideration at the 
hands of all writers on American history, for its 
wrongs are still unredressed. This appears by a re- 
port on the commercial relations of the United States 
with all nations, addressed to the thirty-fourth 
Congress. The duty exacted on the importation of 
American tobacco by Russia was — still is — six roubles, 
or four dollars and fifty cents per one hundred and ten 
pounds ; by Austria, twelve dollars and twelve-and- 
a-half cents per one hundred and ten pounds, but 
allowed to be imported only with the permission of 
the government. Besides the import duty, an extra 
due for the grant of a license must be paid, amounting 
to twenty-seven cents per pound for unmanufactured, 
and one dollar and twelve-and-a-half cents per pound 
for manufactured. The Zolverein exacted five dollars 
and fifty-two cents per one hundred and ten pounds. 
In Sardinia, tobacco was a government monopoly. 
In the two Sicilies it was prohibited. In France 
tobacco was prohibited, or was a government mono- 
poly. In Spain it was prohibited. The British go- 
vernment exacted on the importation of tobacco un- 
manufactured seventy-two cents per pound, and five 
cents additional. On manufactured and cigars two 
dollars and sixteen cents per pound, and five cents 
additional. On snuff, one dollar and forty-four cents 
per pound, and five cents additional. 

The power to regulate foreign commerce, we see, 
has been an unemployed weapon in the hands of 
Congress — a sword rusting in the scabbard. Besides 
the testimony of the Federal statutes in support of 






a form of Government. 221 

this statement, I cite an extract from Benton's forty- 
seventh chapter and first volume : " The constitution 
of the United States gives to Congress the power to 
regulate commerce with foreign nations. The power 
has never yet been executed in the sense intended by 
the constitution : for the commercial treaties made by 
the President and Senate are not the legislative regu- 
lations intended by that grant of power ; nor are the 
tariff laws, whether for revenge or protection, any 
more so. They all miss the object and the mode of 
operating intended by that grant, the true nature of 
which was explained in the early life of the new 
Federal government by those most competent to do 
it — Mr. Jefferson, Mr. Madison, Mr. William Smith, 
of South Carolina; and in the form most considerate 
and responsible. So that in the speeches and writings 
of these three early members of our government (not 
to speak of many other able men in the House of Re- 
presentatives), we have the authentic exposition of 
the meaning of the clause in question, and its intended 
mode of operation. So that the power given in the 
clause to regulate commerce with foreign nations has 
never yet been exercised by Congress : a neglect or 
omission the more remarkable, as besides the plain 
and obvious fairness and benefit of the regulation in- 
tended, the power conferred by that clause was the 
potential and moving cause of forming the present 
constitution and creating the present union." 

We draw yet nearer to the Federal number to wit- 
ness another result growing out of the neglect of 
Southern agriculture by the Federal government, 
controlled by a sectional majority. We turn our 
steps towards Virginia, the first mover for a new con- 
stitution to prop the tottering edifice of her industry 
and power. The foreign trade of that state, after a 
while, was taken from her, and distributed among 
Northern seaports. The tendency to that result, under 
the Confederation, had been pointed out by Madison 



222 The Republic as 

in his letter to Jefferson. After it had been confirmed 
into a trade law under the new government, a total 
disruption of all business ensued, occasioned by the 
"thirty or forty per cent, tribute " paid to the Northern 
merchant, — a new burden added to the old burden of 
the foreign tariffs and the weight of the protective 
system. Indeed the new burdens, and the old burden, 
brought the commonwealth prostrate on the earth. I 
give the statistics of misfortune as I find them in the 
debates and proceedings of the Constitutional Con- 
vention of Virginia of 1829-30. Towns once the seat 
of a flourishing trade fell into ruin, real estate sank 
in value, and slave labour became worthless. Lands 
which in 18 17 had been valued at two hundred and 
six millions of dollars, by 1830 had declined to half 
that sum, and city property and slaves in as great 
proportion. Charles Fenton Mercer, representative 
from Loudoun county, complained that : " Commerce, 
the inconstant handmaid of Fortune, had turned her 
prow from the ports of Virginia to the favoured harbour 
of New York." 

But the most distressing, as well as the most injurious 
consequence, was the depopulation of the commonwealth 
-and the destruction of the tenant system founded on the 
cultivation of tobacco. The grass regions of the com- 
monwealth, from tobacco fields were converted into pas- 
turelands. This occasioned a consolidation of the tenant 
farms, and their dwellings were devoted to inevitable 
decay. Throughout Eastern Virginia the vestiges of their 
homes still are visible — a dismantled building, a fall- 
ing chimney, a decayed orchard, a neglected grave- 
yard, or " a rose to tell where a garden had been." In 
language, which I copy, Hume describes a similar 
calamity which befell the English ancestors of the 
Virginians : " Pasturage was found more profitable 
than tillage ; whole estates were laid waste by enclo- 
sures ; the tenants, regarded as a useless burden, 
were expelled from their habitations ; even cottagers, 



a form of Government. 223 

deprived of the common on which they formerly fed 
their cattle, were reduced to misery ; and a decay of the 
people, as well as a diminution of the former plenty, was 
remarked in the kingdom." In Virginia, those sections 
suited only to the plough and the seedsman were left 
to desolation. Of tide-water Virginia, off from the 
streams, Mr. Mercer presented to the convention 
a truly melancholy picture : " Except on the banks of 
the rivers, the march of desolation saddens this once 
beautiful country. The cheerful notes of population 
have ceased, and the wolf and wild deer, no longer 
scared from their ancient haunts, have descended 
from the mountains on the plains. There was a time 
when the sun, in his course, shone on no land so fair." 
To the description of lowland Virginia, just given, 
I add one from the graphic and brilliant pen of John 
Randolph, of Roanoke, but of an earlier date. At 
Cawson, the residence of Colonel Bland, the rivers 
James and Appomattox, as they mingle their con- 
genial waters, stretch into a beautiful prospect. As 
he stands on the promontory, where the mansion was 
situated, the spectator embraces in one view Bermuda 
Hundred, with its harbour and ships, City Point, and 
other places of interest. In 18 14 Randolph writes to 
a friend : " A few days ago I returned from a visit to 
my birthplace, the seat of my ancestors on one side — 
the spot on which my dear and honoured mother was 
given in marriage, and where I w r as ushered in this 
world of woe. The sight of the broad waters seemed 
to renovate me. I was tossed in a boat during a row 
of three miles across James River, and sprinkled with 
the spray that dashed over her. The days of my boy- 
hood seemed to be renewed ; but at the end of my 
journey I found desolation and stillness, as of death — 
the fires of hospitality long since quenched ; the parish 
church, associated with my earliest and tenderest 
recollections, tumbling in pieces, not more from 
natural decay than sacrilegious violence. What a 



224 The Republic as 

spectacle does our lower country present ! Deserted 
and dismantled country houses, once the seat of cheer- 
fulness and plenty ; and the temples of the Most High 
ruinous and desolate, frowning in portentous silence 
upon the land. The very mansions of the dead have 
not escaped violation. Shattered fragments of armorial 
bearings, and epitaphs on scattered stone, attest the 
piety and vanity of the past, and the brutality of the 
present age." 

In nine years the counties of Loudoun and Fairfax, 
under the government of the phalanx, had diminished 
in population nine thousand. Riots, as in England, 
did not break the public peace, for a solution of the 
social problem was offered in the occupation of a 
vacant and fertile country, accessible from Virginia. 
Tides of population flowed out of a region cursed by 
Federalism into Kentucky, Tennessee, and Missouri, 
and the emigrants carried with them their families, 
their herds, and their slaves. A branch of the living 
current crossed the Ohio, as if determined still to be 
in Virginia, and sought to introduce in their new 
homes their accustomed labour system. Thus by a 
government, which Washington devised and inaugu- 
rated to prevent the people of the states from re- 
turning to the British connexion, the North section 
was given happiness, abundance, power, whilst from 
that unequal and ungenerous hand South section re- 
ceived crucifixion and a crown of thorns. 

With this dismal picture set before our eyes of a 
flourishing commonwealth destroyed by the oppres- 
sions of government, it is with indignation that we 
peruse this extract from an American quarterly 
review. It is by such thoughtless and uninformed 
writers that erroneous opinions are propagated abroad 
as to the value of the political institutions of the 
United States. 

The review says : " Were Ireland a state of this 
Union, does any intelligent, candid man imagine she 



a form of Government. 225 

would remain many years as she is? No. Ilcr mines 
would be worked ; her hill-sides would be ablaze 
with the furnace and the foundry ; her banks, instead 
of being a substitute for the old stocking, would re- 
ceive and give life to industrial enterprise ; her 
fisheries would become a source of wealth, and pro- 
duce a body of hardy seamen ; the white sails of her 
commerce would spread over every sea, the visions of 
her orators would be partially realized ; a new spirit 
would be abroad and make new the face of the land." 
It is a remarkable fact in the history of renovated 
Federalism, that the agricultural class of the East and 
North did not unite with the planting class of the 
South to have a retaliatory commercial legislation 
adopted by Congress. The explanation maybeobtained 
from the correspondence of General Washington. The 
farming class at the North had ceased to be interested 
in that legislative policy. The bond of a conjoined 
interest was broken. The disturbance to industry 
produced in Europe by the revolution in France, had 
caused all ports to open spontaneously to the grain 
trade of America. The year 1790 had given to the 
farmers of Pennsylvania and New York a bountiful 
wheat harvest, and the demand for it abroad was 
great. Whilst this cause produced prosperity in that 
agricultural section, the horn of abundance was poured 
over the Eastern states by the protective policy 
recommended by General Washington, and devised 
by Secretary Hamilton. 1 That year the President 
had made a progress through New England, that his 
eyes might be feasted with the smiling scenes which 
he had created. A letter from the President, to Mrs. 
Catherine M'Caulay Graham, thus paints the attrac- 
tive picture : " The increase of commerce is visible in 
ever}' part, and the number of manufactures intro- 

1 See " Hamilton's Report on Manufactures.' It was for a 
long time the text-book of the protection tariff men, the armoury 
from which thev derived their arguments for the political strife. 

Q 



226 The Republic as 

duced in one year is astonishing. I have lately 
made a tour through the Eastern states. I found the 
country, in a great degree, recovered from the ravages 
of war ; the towns flourishing, and the people de- 
lighted with a government instituted by them and for 
their good." 

The President does not expose to his intelligent 
correspondent, offering a tribute of admiration to a 
hero, the dolorous Southern side of the picture. He 
did not inform that lady that the people of the entire 
South section, and his own Virginia chiefly, were in a 
mood to draw the sword at the oppressions of his 
government, and that brave Harry Lee was among 
them, the warrior son of the " Lowland beauty " he 
had loved so well. 

After surveying the prospect of Northern felicity, as 
drawn by Washington, it will instruct us in the nature 
of his character to be informed that yet he thoroughly 
understood those Eastern men, and the methods which 
they were employing under his eyes on the Federal 
theatre to attain their objects. He was conscious, 
whilst the work was progressing, that they were 
making a spoil of South section, yet he would not 
comprehend that the highest purpose of a presidential 
veto was to protect minorities from such plundering 
combinations as the phalanx openly had formed. To 
one of his correspondents he blamed the Southern 
minority for not preserving an ineffectual unity of 
action against that preponderant vote. But it is well 
to let a President of the United States speak for 
himself : 

" Was it not always believed that there were some 
points which peculiarly interest the Eastern states ? 
Did any one, who reads human nature, and more 
especially the character of the Eastern people, con- 
ceive that they would not pursue their interests 
steadily by a combination of their forces ? Are there 
not other points which equally concern the Southern 



a form of Government* 227 

states ? If these states are less tenacious of their 
interests, or, if while the Eastern move in solid 
phalanx to effect their views, the Southern are 
always divided, which of the two are the most to 
be blamed ? " 

The phalanx was composed not of the Eastern 
votes alone, but of those votes combined with the 
Northern votes in Congress. These united bodies, 
moving in close column, or, as Washington calls it, 
4< solid phalanx," carried by their majority every 
measure favourable to the North and East, and de- 
feated every measure favourable to South section. 
The annals of Congress exhibit this fact. Whilst, as 
president of the convention, and deputy from Vir- 
ginia, he watched the silent growth of that colossal 
power, Washington was well apprised, it appears, 
from the character of the Eastern and Northern people, 
of their legislative affinities, and that if the govern- 
ment were placed under their control they would 
employ it for their joint aggrandizement. Others 
there were who, lulled by dreams and hopes, believed 
that ultimately, by the action of events, the South 
would become the greater section in the Union ; but 
not Washington, with his strong, practical under- 
standing. He at least was no dreamer. The Republic 
is a dangerous power for any nation to experiment 
with, for no organical structure can control the action 
of its government. When created, a force is origi- 
nated which resembles the terrible agents of nature, — 
flood, conflagration, storm, — and it must run its deso- 
lating course. There is but one solution of Washing- 
ton's conduct. He sacrificed Virginia, as well as 
every other state of South section, to a Northern 
majority, in a powerful government, to prevent counter- 
revolution. He was not dazzled by the common 
objects of ambition; but the revolution was not a 
common object of ambition. It represented all that 
he prized most in life — his influence and fame ; and 



228 The Republic as 

in none of the great men of history was blinding 
self-love more powerfully developed than in George 
Washington. 



CHAPTER XII. 




NDIGO w r as planted in the two Carolinas 
and Georgia about the year 1740. From 
the success which attended its cultivation 
it attracted the attention of the British 
manufacturer, and received the patronage 
of the British government. So flourishing, under that 
fostering policy, had the indigo interest become, that, 
in the thirty-five years which preceded the American 
revolution, the annual export of that commodity, to 
the home dominions of the Crown, amounted to more 
than one million pounds. After that event a period 
of adversity set in, and, by the year 1800, the export 
of indigo had been reduced to four hundred thousand 
pounds per annum ; by 18 14, to forty thousand pounds 
per annum ; at a date still later, the export amounted 
to eight thousand pounds per annum. The causes 
of the prosperity and adversity, which in turn visited 
the cultivation of indigo in the United States, must 
confirm our belief in the tendency of representative 
government to foster the strong, but to allow the 
weak to dwindle, to sicken, and to perish. 

In the reign of George II. a law was enacted award- 
ing a bounty, or premium, of sixteen pence sterling, to 
be paid out of the British treasury, for every pound 
of indigo imported out of the plantations in North 
America. It recited that a regular, ample, and certain 
supply of indigo was indispensable to the success of 
British manufactures, then dependent on the foreign 
supply of that article ; and that it was the dictate of 
a wise policy to encourage the production of indigo 



a form of Government. 229 

at home. When monarchy was abolished, and those 
colonies became provinces of a Federal Republic, the 
bounty was paid no longer, and indigo was left to 
scramble, in Congress, with stronger interests for the 
assistance of the political authority. In tracing the 
history of this commodity we pass to the year 1829, 
memorable for the high protective tariff with which 
the phalanx, become more exorbitant and more 
powerful, had afflicted South section, still the region 
of exports and imports, as Ellsworth had described 
it. It had obeyed the law of all monopolies, becoming, 
as time progressed, more excesssive in its exactions 
and spoliations. Benton, at this time a senator from 
Missouri, was a vigorous actor and an intelligent 
observer in the Congress of 1828-29. He has given 
the history of the origin, progress, and consummation 
of that measure of plunder legislation, and I tran- 
scribe it here as the most instructive part of his 
" Thirty Years' View in the Senate": 

" The Tariff Act of 1829 marks an era in our legis- 
lation. It was the work of politicians and manufac- 
turers ; and was commenced for the benefit of the 
woollen interest, and upon a Bill chiefly designed to 
favour that branch of manufacturing industry. But, 
like all other Bills of the kind, it required help from 
other interests to get itself along, and that help could 
only be obtained by admitting other interests into the 
benefit of the Bill. And so, what was begun as a 
special benefit, intended for the advantage of a par- 
ticular interest, became general, and ended with in- 
cluding all manufacturing interests, or, at least, so 
many as were necessary to make up the strength 
which was required to carry it through Congress." 

The senator watched the Bill as it threw out its 
arms and tentacles, gathering allies and helpers in 
its wide and strong embrace. In this way the selfish 
principle in government acted in 1829 in the American 
Congress. Benton represented slave-holding Mis- 



230 The Republic as 

souri, geographically a part of the West, but politi- 
cally classed with the South, and he was a native of 
North Carolina. His political and moral connections, 
as well as the magnanimity of a great mind, induced 
him to propose to amend the Bill with a duty of 
twenty-five cents per pound on imported indigo, 
with a progressive increase, at the rate of twenty- 
five cents per pound per annum, until the whole 
duty amounted to one dollar per pound. The object 
of the amendment was two-fold : first, to place the 
American system beyond the reach of its enemies, 
by procuring a home supply of an article indispensable 
to its existence ; and second, to benefit South section 
by reviving the cultivation of one of its ancient and 
valuable staples. But the sectional combination, or 
the phalanx, as it was better called in the first Con- 
gress, did not require the help of the indigo interest, 
and refused to extend the partnership, as Senator 
Benton had proposed. But, when understood, the 
interest of the phalanx was opposed to the proposed 
duty, and demanded cheap indigo from abroad with 
which to tincture and stain their fabrics. So they 
refused again to recognize the agriculture of South sec- 
tion as admissible into what they called an "American 
system." Whip in hand, the manufacturers stood in 
the lobby of Congress, watching their attorneys on 
the floors of Congress, and directing their action. To 
keep up the appearance of justice, but for no other 
purpose, a duty of five cents per pound annually for 
ten years, but to remain at fifty cents, was proposed 
as a substitute for Benton's amendment, which would 
have been twenty-five per cent, on the cost of the 
article, to be obtained after a progression of ten years, 
whilst all other duties in the Bill were from four to 
five times that amount, and to take effect immediately. 
Benton thus speaks of the transaction : " A duty so 
contemptible, so out of proportion to the other pro- 
visions of the Bill, and doled out in such miserable 



a form of Government. 2 3 1 

drops, was a mockery and an insult, and was so received 
by the Southern members. It increased the odious- 
ness of the Bill by showing that the Southern section 
of the Union was only included in the American 
system for its burdens, and not for its benefits." 

William B. Giles, a member of the first Congress 
and a governor of Virginia, was a first-rate figure in 
the politics of the Union, and knew the stream of 
Federal politics as it flowed from its remotest fountains. 
He had contended with the phalanx when first formed, 
and was a stalwart champion worthy to battle for free 
trade by the side of Madison. Watkins Leigh, a great 
Richmond lawyer, said Giles was the only man of his 
day who, in conversational argument, could contend 
with Chief Justice Marshall. This experienced states- 
man and able logician gives the origin of the move- 
ment which culminated in the Tariff Bill of which 
Benton has spoken. That Tariff is historical in the 
politics of the Union. It produced the Nullification 
ordinance, and was called by its adversaries "The 
Bill of Abominations," and is so known in American 
history. If it had not been repealed, it would have 
produced the rupture between the sections which was 
postponed until 1861. Governor Giles was a member 
of the Constitutional Convention of Virginia in 1830, 
when he made the speech from which this extract is 
obtained : n 

" He called the attention of the convention to an 
example forming an awful contrast to the one pre- 
sented by the gentleman. It was furnished by the 
Federal government. An excessive tax, as he con- 
ceived, had been imposed by that government in 
direct violation of moral principles, and the plainest 
provisions of our written constitution. It originated 
in combinations of particular sections of country to 
tax other sections. These combinations were effected 

1 "Debates and proceedings of the Convention of 1829-30/' 



232 The Republic as 

by invitations, given by certain political fanatics to 
other fanatics, to meet in convention in Harrisburg 
during the recess of Congress ; excluding from 
these invitations all the sections of country intended 
to be made tributary. Virginia was not honoured 
with an invitation, nor any state south or south-west of 
Virginia. This convention, thus composed, unblush- 
ingly met at Harrisburg in open day, organized them- 
selves into a convention with all the honours and 
formalities awarded to this convention, and there 
laid the Tariff Act which, subsequently, was sanctioned 
by Congress. This Act was passed in direct viola- 
tion of every principle of taxation heretofore held 
sacred, and was addressed to the worst passions of 
the human heart. Such are the effects of the unprin- 
cipled measures recommended by the fanatical con- 
vention of Harrisburg, which, after usurping all the 
powers of an authorized convention, kept a regular 
journal of their proceedings, and, after their adjourn- 
ment, officially forwarded him a copy thereof." 

We have had explained, by two leading men in the 
Union, the working of the Republic in 1829 as it 
affected the two sections which composed the Union, 
and how it laid the hand of poverty and distress upon 
South section. We will now compare it with the treat- 
ment which New England, a minority combined in the 
potent phalanx, received for one of its distinctive 
interests. The New England fisheries had been en- 
couraged by bounties paid out of the King's treasury, 
as the indigo plantations had been, and they were not 
neglected by the Republic of the United States. Con- 
gress granted five cents a barrel on pickled fish, and 
five cents a quintal on dried fish, exported from the 
United States, in lieu of the drawback on the duties 
imposed on the importation of the salt used in curing 
such fish. The Act of 1790 increases the bounty, in 
lieu of the drawback, ten cents'a barrel on pickled fish, 
and ten cents a quintal on dried fish. The Act of 



a form of Government. 233 

1792 repeals the bounty in lieu of the drawback on 
dried fish, and in lieu of that, and as a compensation 
and equivalent therefor, authorizes an allowance to be 
paid to vessels in the cod fishery (dried fish) at the 
rate of 81.50 per ton on vessels from twenty to thirty 
tons, with a limitation of $170.00 for the highest 
allowance to any vessel ; and a supplementary Act of 
the same year adds twenty to each head of these 
allowances. An Act of 1797 increases the bounty on 
pickled fish to twenty-two cents a barrel, and adds 
thirty and a third per cent to the allowance in favour 
of the cod-fishing vessels. The Act of 1799 increases 
the bounty on pickled fish to thirty cents a barrel ; 
the Act of 1800 continues all previous Acts, bounties, 
and allowances for ten years. In 1807, when Jeffer- 
son was president, a law was enacted by Congress 
which repealed all Acts for paying bounties on the 
exportation of pickled fish and making allowances for 
fishing vessels. But in 181 3, when facile Madison was 
#n the presidential throne, the phalanx rallied its forces 
and again entrenched itself in the government. In 
that year an Act was passed which gave a bounty of 
twenty cents a barrel on pickled fish exported, and 
allowed to the cod-fishing vessels at the rate of $2.40 for 
vessels between twenty and thirty tons, $4.00 a ton for 
vessels above thirty tons, with a limitation of 8270.00 
for the highest allowance. The Act of 1 8 1 6 continued 
the Act of 1 8 1 3, which otherwise would have expired 
with the war. The Act of 18 19 increases the allowance 
in the cod-fishery to $3.50 per ton on vessels from five 
to thirty tons, and 84.50 per ton on vessels above 
thirty tons, with a limitation $360.00 for the maxi- 
mum allowance. By 1830 the aggregate of the fishing 
bounties and allowances had amounted to thirty-five 
million dollars drawn out of the Federal Treasury. 
These facts speak for themselves, and speak loudly, 
when taken in connection with the cold neglect with 
which the indigo interest and the tobacco interest had 



234 The Republic as 

been treated by the Federal Congress for which Hamil- 
ton and Washington had made such profuse promises. 1 

In the full and accurate learning which Benton 
brought to the examination of the action of the 
Republic, during his extended senatorial term, he was 
lead to compare the result upon the sections produced 
by the legislation of the Republic of America, and 
that of the Monarchy of England, and this is his con- 
clusion : 

" In the colonial state, the Southern were the rich 
part of the colonies, and expected to do well in a state 
of independence. They held the exports, and felt sure 
of their prosperity ; not so the North, where the re- 
sources were few, and who expected privation from 
the loss of British favour. But in the first half century 
after independence this expectation was reversed. 
The wealth of the North was enormously aggrandized, 
and that of the South had declined. Northern towns 
had become great cities ; Southern cities had decayed, 
or become stationary ; and Charleston, the principal 
port of the South, was less considerable than before 
the revolution. The North became the money-lender 
of the South, and Southern citizens made pilgrimages 
to Northern cities to raise money on the hypotheca- 
tion of their patrimonial estates. This was in the 
face of a Southern export since the revolution of 
$800,000,000, and equal to the product of the Mexican 
mines since the days of Cortes, and twice or thrice 
the amount of their product in the same fifty years. 
The Southern states attributed the result to the action 
of the government : its double action of levying the 
revenues upon the industry of one section of the Union, 
and expending them on another, and especially to the 
protective tariffs. To some degree the attribution 
w r as just, but not in the degree assumed ; which isevi- 



1 See the " Federalist " and Washington's letter to La Fayette 
before quoted. 



n 

:! ) 



a form of Government. 235 

dent from the fact that the protective system had only- 
been in force for a short time. Other causes must have 
had that effect ; but for the present we look to the 
protective system ; and without admitting it to have 
done all the mischief of which the South complained, 
it had done enough to cause it to be condemned by 
every friend to equal justice among the states — by 
every friend of the harmony and stability of the Union 
— by all who detested sectional legislation — by every 
enemy to the mischievous combination of partisan 
politics with national legislation." 

Beyond question Benton is in error when he assigns 
1 816 as the beginning of the protective system in the 
United States. My readers know it was begun in 
1789, and had its headsprings in Washington's cabinet, 
if the men who made the law and officiated at its 
baptism are to be presumed to have understood what 
a tariff bill meant and the design intended to be 
accomplished by it. Henry Clay of Kentucky, the 
great champion of protection, always traced the pro- 
tective policy to that source, claiming Washington for 
its first patron, and he did so in a speech made in the 
senate which Benton heard, and has quoted in his 
44 Thirty Years' View." By 18 16 the protective system 
had swelled into an overgrown monopoly, had driven 
Calhoun into the ranks of its opponents, and perhaps I 
Benton, at that time not in politics, but a growing 
lawyer at the St. Louis bar. But the senator is right • 
w T hen he conjectures that " other causes" had super- 
vened and allied themselves with the protective system I 
to produce the calamities to the South which he has 
set before us in so vivid a picture. With those other 
causes, not considered by the learned Benton, my 
reader somewhat fully, if not tediously, has been made 
acquainted in the refusal of the phalanx to lift from 
Southern agriculture thecrushingweights putuponitby 
the revengeful tariff of Great Britain and the injurious 
co-operating tariffs of the states of the continent. }{} 



236 The Republic as 

The existence of that other cause was known to 
Benton, as the presence of an undiscovered astral body 
is detected, though not visible to the telescope of the 
astronomer. In searching for the forces which had 
disconcerted the projected equilibrium of sections, 
this writer, before the Civil War, had ascertained and 
published the causes in the "Lost Principle of the 
Federal Government." But I cannot take leave of 
the Bill of Abominations until it has pointed the moral 
of this book. It was produced by an adulterous con- 
nection between the manufacturer and the politician. 
Giles and Benton saw its gendering, its embryon, its 
birth, as they beheld the monster after it had attained 
its maturity, and the voters of America had as little 
to do with it as they had had with the enactment of 
the British navigation laws. We have stood at the 
sources of American liberty, we have followed the 
stream along its devious course, and have seen the 
king of floods throw himself into the ocean of despotic 
power. 

Tobacco was too important an entity in the colonies, 
and the states into which they declined, not to receive 
further attention at our hands. On the tobacco plant 
the civilization of Virginia was founded. Its cultiva- 
tion had spread into the province of Kentucky, whilst 
Virginia, with the rifle in one hand and the implements 
of husbandry in the other, was preparing to cross the 
Ohio and assert the claims of civilized society against 
the occupancy of the red man. Tobacco formed the 
only, or at least the principal article of commerce 
which Virginia sent abroad. The subdivision of her 
soil into minute allotments had been made w T ith refer- 
ence to its cultivation, for whilst her territory, to a 
considerable extent, belonged to proprietors who 
had purchased from the patentees of the Crown, it was 
in the hold and occupation of a numerous tenantry, 
who employed the labour of slaves. Thus in the 
wilderness had arisen the mediaeval type of society, 



a form of Government. 237 

which both philosophy and experience teach is the 
strongest, and that which most perfectly reconciles 
and combines the adverse claims of capital and labour, 
and if upheld by the political power affords a lasting 
foundation for national life. 

Along the coast of Africa, which fronts the West, 
markets of supply invited the Puritan slave-dealer, 
who had supplanted the British merchant in the pro- 
fitable but dishonourable traffic. In any market 
town in the colony a hogshead of tobacco could be 
exchanged for a Congo or Guinea negro. Thus the 
slave trade fructified the plantations of Virginia and 
Maryland, whilst it enhanced the wealth of New 
England. A monopoly of the tobacco export trade 
the Navigation Act secured to the British merchant, 
by whom, after the domestic wants of the kingdom 
were satisfied, the demand of the continental states 
was supplied with that commodity, as far as it w T as 
produced in the North American colonies. As a 
compensation for the monopoly, tobacco was admitted 
duty free into British ports. Subject to these condi- 
tions, the tobacco culture widened as the settlements 
of the Anglo- Virginian were enlarged, and rewarded 
the industry and capital which it employed. 

The civilization of that British plantation owed a 
further debt to tobacco, for it provided the colonists 
with a convenient local currency. It was the money 
of Virginia, excepting in the retail trade, which was 
furnished with coin struck in London, or which had 
worked into circulation from the Spanish Main. By 
the enactments of colonial statutes, warehouses, at con- 
venient places, were constructed in which tobacco was 
deposited and inspected, and the certificates of the 
warehouseman performed the offices of a paper cur- 
rency, but were liable to fluctuate in value with the 
changes in the tobacco market. Thus, in that rudi- 
mentary civilization, had been introduced the tobacco 
bank of deposit, not differing, in principle, from the 



238 The Republic as 

Bank of Amsterdam, of which Lord Macaulay in his 
" History of England," and Adam Smith in his 
" Wealth of Nations," have given interesting accounts. 
One of the false promises of the revolution to the 
planter class was that, with the establishment of an 
independent government, the tobacco monopoly would 
be abolished, and all markets opened to it, introducing, 
instead of monopoly, the lucrative principle of com- 
petition. The unlessoned statesmen of the colonies — 
the lawyers, the surveyors, the fox hunters, the 
planters, — blind guides of an erring people, did not 
understand, until experience unsealed their eyes, that 
foreign markets were barred to tobacco by state 
policies which no diplomacy could change. The 
greatest attainable advantages were then enjoyed in 
unrestricted intercourse with the ports of the empire 
which the revolution closed, or so embarrassed by 
conditions as practically to amount to exclusion. 
The tobacco planter, as well as other producing 
classes, discovered that the revolution had proved a 
swindle, and that a handful of the false coin of repub- 
lican liberty was all that he had to show for the 
disasters of a seven years' war. This stubborn fact 
became apparent to the least intelligent mind, for 
poverty, debts, and hard times, produced throughout 
the Union a relaxation of social order. Counter- 
revolution began to be talked of among the people, 
and such men as the great orator expressed their 
disappointment with the Republic. The politicians 
became alarmed, and letters flew from one to another. 
Jefferson was sent to France to induce an ally, a 
despotic king, to change, for the advantage of a re- 
public, the principles of a revenue and a commercial 
policy which was rooted in custom, and the interests 
of large moneyed classes in the kingdom. It was 
necessary to soothe Virginia, moody at being de- 
spoiled of her trans-Ohio domain at the time that she 
was distressed in her finances, and in every branch of 



a form of Government. 2 39 

her trade. The politicians did not forget that the 

bold temper that had led in revolution might lead in 

a reversal of the disastrous event. 

To a conciliating address, and great good temper, 
Jefferson united varied knowledge and a large ac- 
quaintance with public affairs. His understanding 
was both comprehensive and acute, and he spoke the 
Trench tongue with accuracy, grace and fluency. 
Thus qualified, thus accomplished, thus adorned, he 
appeared at the Court of the French king and opened 
negotiations with the Count de Vergennes, still at the 
helm of affairs. In both countries it was the general 
expectation that a large commerce would arise be- 
tween the allies, to which friendship, as well as mutual 
wants and capabilities, afforded probability. The 
United States offered productions raw, France those 
upon which skill and industry had been exhausted. 
Notwithstanding these inducements to a nautical 
traffic, added to the general expectation and desire, 
the French cabinet had been inactive, and had enter- 
tained only a silent wish for advantages which fortune 
had placed within reach. Repulsed on every side, the 
commerce of the Republic languished, and, so far as it 
survived, continued to flow in the old British channel. 
Braced by the difficulties of the situation, and en- 
couraged by the hope of success, the accomplished 
Jefferson addressed himself to the task of extricating 
the trade of the two nations from the difficulty which 
environed it and placing it on a prosperous footing. 

Some acts on the part of the French Court were 
done which manifested a disposition to cast off its 
inert policy. The manufacturers of the plated ware 
of Birmingham, the steam mills of London, copying 
presses, and other mechanical works, were invited to 
settle in France ; and Wedgwood too, so famous for 
his earthenware in the antique style. 1 Those manufac- 

1 See Jefferson's Correspondence while at the court of France. 



240 The Republic as 

tures it was known had contributed to draw American 
trade to England, and it was supposed that a transfer 
of them to France would attract the American mer- 
chant, and thus strengthen the connections between 
the friendly powers. To rival Cowes in the English 
Channel, so important a depository of the colonial 
trade, the indefatigable minister solicited the enfran- 
chisement of Honfleur at the mouth of the Seine. 
He said it would be the outpost of Paris, and from it 
the northern parts of the kingdom would be supplied 
with the unwrought productions of the New World, 
and, as Cowes had been, it would be the entrepot 
from which other countries would obtain a supply of 
those articles. In the same way Bordeaux, through 
the Garonne and the canal of Languedoc, might be 
made a centre from which the Southern provinces of 
the kingdom would be furnished. But these acquisi- 
tions were to be only introductory to a more extensive 
system, for the ambassador appeared as ready to in- 
novate in French commerce as he had been to intro- 
duce novelties in the American modes of government. 
But unfortunately for the success of Jefferson's mission, 
the principles of trade, as taught by Adam Smith, and as 
accepted now by enlightened statesmen, were not re- 
ceived by the government of the French king. The ex- 
changes of commerce, now regarded as an elementary 
truth, were not supposed to be necessary to its 
existence, and surprise was expressed that the Ameri- 
can trader did not sell his oil, tobacco, rice, furs, and 
breadstuffs in Bristol or London, and fetch the money 
to be expended in the purchase of French commodi- 
ties. It was forcibly pointed out by Jefferson that 
it would be necessary to lay a basis for trade by a 
total relinquishment of the restrictive system, and by 
low duties, or no duties, to invite to the French ports 
every article that American industry could produce. 
A reduction on the oil duty was reluctantly conceded, 
.but as it was to last only during the minister's plea- 



a form of Government. 241 

sure, the inducement was not such as to justify the 
fishermen of Nantucket in rebuilding their ships, and 
it was restored by Montmorin when he succeeded to 
the portfolio of State. The duty had been imposed 
on oil to encourage French fishermen who might be 
drafted into the royal navy. The oil duty then was a 
part of the system of the national defences which the 
adventurous minister proposed to change. 

It was agreed to receive the rice of Georgia and of 
the Carolinas on such terms as would enable it to 
compete with the rice of Italy and Egypt. But tobacco 
was on the worst possible footing for the interests of 
commerce. It was a monopoly in the hands of the 
farmers general, a privilege for which they paid a 
large sum into the treasury of the King. To break 
that monopoly constituted the most difficult and the 
most important particular of Jefferson's mission, which 
would, he said, divert to France the torrent of wealth 
which America was pouring into the lap of Great 
Britain. The farmers had made their purchases from 
London or Cowes, had always paid in money, and 
continued to resort to the same markets, though occa- 
sionally they obtained their supplies in the United 
States. But even then, Jefferson affirmed, payment 
was made through the medium of London remittances, 
and the returns w r ere made in English commodities. 
In either case tobacco was lost to the commerce of 
the allied states. Political independence had not pro- 
duced commercial independence to the Federal states. 
The old vassalage continued with additional aggrava- 
tions. It was no easy task to destroy the system of 
finance and trade in which those evils originated, and 
have the tobacco of the Union placed on the list of 
commerciablearticles. The lucid statements of Jefferson 
showed that if it were done, commerce, unpinioned, 
would rise up like a strong man, and prosperity would 
be the result. But his efforts proved to be unsuccess- 
ful. The King received from the farmers general 

R 



242 The Republic as 

for the tobacco monopoly twenty-eight million livres — 
too considerable a sum, and too important to the 
revenue, it was thought by the sagacious Premier, to 
be tampered with. The collection by farm was of 
ancient date, and it was hazardous to alter arrange- 
ments of such long standing and such infinite com- 
binations with the fiscal system. Jefferson expresses 
the opinion that, as the farmers were great capitalists, 
it was not safe for any minister to enter into a contest 
with them, and insinuates that an unworthy motive 
governed the action of the Count de Vergennes. The 
mission failed, and Jefferson advised his countrymen 
to cede to Congress a jurisdiction over commerce, that, 
by counter-restrictions, the ports of Europe might be 
opened to the tobacco trade of Virginia and Maryland. 
John Adams, at the Court of London, vainly attempted 
to relax the severity and excite the compassion of his 
old master towards the commerce of his revolted sub- 
jects. But King George was inexorable : America had 
broken from the British Empire, had sought indepen- 
dence, had found it, and his majesty was resolved she 
should enjoy that blessing to its fullest extent. 



CHAPTER XIII. 

THE MACHINE. 

HAT there is, or can ever be, in any nation, 
an instructed, impartial, wise, and sovereign 
tribunal called "The People/' to which all 
political questions may with safety be 
referred for adjudication, is an error which 
lies at the foundation of Republican government. It 
is this opinion which arrays the Republic in deceitful 
colours and places it on a false bottom. If it were 




a form of Government. 243 

possible for the political population of any country to 
constitute such a senate, endowed with all the faculties 
for executing its decrees, the Republic would be indeed 
a political Paradise. But the opinion is an illusion, a 
phantom, a mirage that swims and dances before the 
mind of the enthusiast. The United States is one of 
the most civilized and intelligent nations that has ever 
existed, and if its experience with Republican govern- 
ment teaches any truth fully, definitely, and satisfac- 
torily, it is that such a belief is entirely erroneous. The 
voters are necessarily deprived of agencies requisite to 
supply them with full and correct information with 
respect to public affairs as emergencies arise ; nor 
could they possess the extensive and various know- 
ledge which the discharge of so responsible a duty 
would demand, and that, too, whilst they are occupied 
with the business and oppressed with the daily and 
hourly cares of life. 

Statesmanship is the highest and most difficult 
occupation in society, and requires an absolute devotion 
to itself. It is a theatre upon which the mind displays 
its greatest qualities. It is there that we meet a Bis- 
marck, a Chatham, a Gortschakoff, and a Beaconsfield. 
The proposition that society, organized and occupied 
as it is, could perform that part, could not be true, and 
an actual experiment in self-government by any nation 
must be fatal to it. Whilst voters, in their primary 
assemblies, are deliberating on the concerns of the 
state, their private business would be neglected, and 
their families and homes would perish. These practical 
difficulties and insurmountable barriers to popular self- 
government became apparent as soon as the system 
was set in motion. But then it was too late ; the 
error does not admit of remedy. A government has 
its constabulary, its navy, its army to defend it, and 
must live its life. It may well be doubted whether 
the founders of the American system of popular sove- 
reignty, or at least the far-sighted among them (we 



244 The Republic as 

know that Madison was not), were deceived into be- 
lieving that it was a preparation for self-government 
by the voters, inasmuch as their various constitutions 
did not provide means by which the voters, from time 
to time, could issue their mandates to their represen- 
tatives as occasion might demand, and so be in truth 
the rulers and governors of the country. Elections for 
stated periods, with no means of direction or control, 
placed in the hands of the people, is not self-govern- 
ment by the people. Such a system, experience shows, 
creates politician government, and is exposed to all the 
objections, numerous as the stars, which exist to such 
creations ; and the imperfect development which the 
popular principle of government has received in the 
United States condemns the principle itself, for it does 
not appear capable of being carried farther. It has 
been asserted by some ingenious theorists that the 
principle of representation, as it appears in modern 
politics, originated in the councils of the Christian 
Church. If so, the debt to the Church in this respect 
is not a great one, for the discovery has only enabled 
mankind to create politician government, and that is 
the extent of the obligation. In his Bristol speech, 
directed against the right of the constituent body to 
instruct their members of Parliament, Burke, in a very 
brilliant oration, but with the arguments of a sophist, 
defends the government of the politician, for his argu- 
ment is based on a misconception or mis-statement of 
the representative trust. 

Political representation is a species of agency, and 
is not separable from its nature and principle. As 
soon as by any process the agent becomes emanci- 
pated from the control of the principal, as Burke's 
argument would make him, he is an independent de- 
pository of power, and the agency terminates. When 
the orator points out the gross absurdity of the repre- 
sentative hearing the argument in London, whilst the 
voter decides the question in Bristol, he exposes in a 



a for 7ii of Government. 245 

very forcible manner the inconsistency of popular 
government. If he had contended that the election 
only creates politician government having a popular 
birth, to which a right of instruction would not natu- 
rally or reasonably attach, some might agree with him. 
But it is a great misnomer to call such a system a 
government of the people. Unless the government be 
confessedly a government of politicians only, no one 
can successfully impeach the right of instruction ; for 
it is an inalienable right belonging to every principal 
to guide the action of his agent, and we do not abolish 
or impair the right by calling the agent a member of 
Parliament. All that, logically, could have been 
claimed by Mr. Burke, was that the right of instruc- 
tion was one for which the laws of England had made 
no provision, and that as soon as the elections are over 
the House of Commons was transformed into an inde- 
pendent body, a solecism as a result of a popular 
election, unless it be of a king or an emperor. 

It was an admission, resting in matter of fact, that 
the Republic was not a government of popular respon- 
sibility when the mass of voters, renouncing their 
judicial character, and assuming that of partizans, 
separated into opposing parties, headed by their chief 
men. By that act alone the nature of the government 
was made to undergo a radical change. The party 
platform was introduced, and completely established 
the lines of demarcation between the opposing parties, 
and supplied the voters at once with a political 
creed and a test of orthodoxy and obedience. At 
the same time that it afforded to the representative a 
criterion of party fealty, it, to this extent, protected 
him from responsibility, and attached every voter to 
the organization. It was this change, a necessary 
development it appears, which converted the Republic 
at the outset into a government of factions, and de- 
voted it sooner or later to a violent end. Those em- 
bittered parties, more hostile than opposing armies, 



246 The Republic as 

absorb the being of voters. The party convention is 
the agency which crowns the structure, and is as 
necessary, as an organizing power to the working of a 
political party in America, as platoon, regiment, and 
brigade are necessary to the efficient action of an 
army. The politicians have the county convention, 
the state convention, the national convention. In 
these assemblies declarations of political faith are 
conceived, formulated, and published — the platforms 
on which political parties stand in elections. The 
convention rests on the ward or precinct meeting as 
a foundation, which, by a fiction of politics, voters are 
supposed to attend, and this fiction lies at the base 
of the column. But if the representative principle had 
been introduced at the precinct meeting, it is clear that 
in the rising series of dependent conventions it would 
be speedily and entirely lost. The system thus de- 
veloped becomes the play of " Hamlet " with the part 
of Hamlet left out. It is upon the false theory that 
through these removes and gradations the final con- 
vention reflects the wishes of the voters that the claim 
of the Republic rests of being a government of the 
people. In this convention system a great deal is 
seen of the politician, great and small, but little or 
nothing of the people until voting day comes, when 
they attend the polls in drilled and organized masses. 
Election day is the only part of the business that the 
leaders cannot manage with perfect success with- 
out the people. The head men demand a power of 
attorney, some show of authority from the voters, and 
that the convention, with its presumed popular deri- 
vation, gives them. 

It has been stated that the first step in the business 
of self-government by the people has not been taken, 
for the voters, except in inconsiderable numbers, do 
not attend the primaries, from pre-occupation, or be- 
cause the proceedings are plainly a sham, or that they 
are reluctant, by any act of theirs, to confer authority 



a farm of Government. 247 

on delegates over whom they have not the least 
control. But, good or bad, this is the mode by which 
county, state, and national politics are managed in 
the great Republic of the West. The voters have the 
system set before them — inception, progress, con- 
clusion — and they comprehend in the clearest manner 
its utter hollowness and unreality as a government of 
the people. In despair they abandon the field to the 
politicians and their personal retainers, disciplined 
household troops, with whom they cannot contend 
with any hope or prospect of success. Yet such is the 
nature of man, when the work is done, and each party 
is mustered on its platform — so violent is political 
animosity in the Republic — that the edicts of managers 
are received with punctual obedience. When local 
orators, or even candidates for office, would collect the 
people to hear political discussion, an occasion is again 
supplied, when the voters very strikingly display their 
apathy in politics. They cannot be induced to leave 
their homes and occupations for objects of that kind, 
unless a special attraction is held forth — a barbecue, 
a band of music, or a stranger of distinguished elo- 
quence — a Daniel, a Conrad, or an Ellis. 

If the voter is interrogated why he does not attend 
the primary meetings of his party, he will answer : " I 
have no time to spend in that way ; " or, " It is of no 
use, for when I get there I will find that the business 
has been attended to." Such, indeed, is the case. 
The chairman who has to control the meeting has 
been designated, the resolutions have been digested 
and drafted, the candidates have been selected, and 
all that the bewildered countryman can do is to accept 
the work in silence. The predetermined result is 
announced, perhaps by a committee ; the meeting is 
adjourned ; and the country voter returns to his home, 
marveling how little the people have to do with the 
government of a Republic. He is right ; the system is 
a false pretence, a sham, a humbug, and the people 



248 The Republic as 

have, in reality, as little control in a Republic as they 
have in any Monarchy. Such is " the machine" ! It 
moves with an irresistible momentum, it crushes in- 
dependence of action and thought, and generally pre- 
fers for the highest offices of the Republic fortunate 
or subservient mediocrity, often with a large amount 
of " boodle." Thus are men nominated for the presi- 
dential office of whom often the states have not heard 
before, instead of the Websters, the Calhouns, the 
Bentons, who have been chosen in the hearts of the 
people. This is the power which, with the sway of a 
Roman dictator, governs the United States of America. 
The voter there is a nonentity ; he is as much sub- 
ordinated and lost by machine politics as a ryot of 
Hindoostan. Voters comprehend this, and when the 
huge Federal conglomerate falls in pieces, mankind 
will be astonished at the little reluctance with which 
they surrender the franchise. Each of the factions 
has its machine with which fierce battle is made. 
They plot and they counterplot, they mine and they 
countermine, until the subject of controversy is de- 
stroyed, when a sorrowful people, aweary of the Re- 
public, its antagonisms, its agitations, and corruptions, 
invoke the soldier to save them from the politician. 
Like a cloud the convention gathers, like a cloud it 
disperses. The party machine is set in motion by an 
executive committee with a superintendent at its 
head, perhaps an enterprising young lawyer, to direct 
when and where the primary assembly is to be held. 
That despotic system, the work of the politician, has 
grown up in America outside of the law, and yet is far 
stronger than the law, 

When the Constitution of 1787 was submitted to 
the states for consideration, as it was an experiment, 
every perfection could be attributed to it without the 
fear of successful contradiction. It is this which 
renders innovation in politics so enticing, and theo- 
retical government so dangerous. It strikes the human 



a form of Government. 249 

mind where it is most infirm in its tendency to theory 
and imagination. It was an immense advantage to 
the constitution that it had never been tried, that the 
system which it recommended was a new one, but it 
was not so great a one as the assumed infallible 
judicial character of the people. If a probable hard- 
ship or apprehended wrong was suggested by some 
jealous alarmist, a satisfactory answer was always 
ready : u A wise and virtuous people, interested only 
in the right, and present everywhere, would prevent 
or correct every assumption or abuse of power." To 
deny the truth of that assertion, to impeach the va- 
lidity of that argument, was to impugn the capacity for 
self-government of a sovereign people. 

Pennsylvania was the first of the states to call its 
convention of ratification, but the second to accept 
the constitution, Delaware being the first, and James 
Wilson, statesman, lawyer, debater, and adventurous 
philosopher, was the only one of the fathers who sat 
on that floor. When pressed hard in the debate, that 
skilful logician would defend the constitution with 
this weapon : "The people of the United States," he 
would say, "are now in possession and exercise of their 
original rights. Whilst this doctrine is known and 
operates we shall have a cure for every disease." As 
Mr. Wilson spoke, other advocates asserted and pro- 
tested on every theatre of discussion within the circle 
of the Union. However illusory that opinion, it carried 
ratification in triumph through the contest where more 
questionable and grosser means were not employed. 
The judgment of Washington, who had no political 
experience, and very few political ideas of his own, 
perhaps was deceived by that glamour. He did not 
discover the witchery until Jefferson, retreating from 
the portfolio of State, rapidly organized an opposition 
party, and opened his guns on the phalanx and the 
president, who was held by them as a prisoner of 
State. The ex-soldier very speedily then was unde- 



250 The Republic as 

ceived. He discovered that the government which he 
had founded at the cost of so much blood, chicane, 
and deception, was but a creation of political parties, 
or " factions," as he bitterly called them, which, when 
the end came, would settle their quarrel with the 
sword. Until then, the high priest and chieftain of 
Federalism had listened only to the dulcet notes of 
flattery, whispered into credent ears, but now he was 
to hear a fierce democracy bellow around the Federal 
palace, informing its occupant that another coalition 
had been formed, even the coalition of equal rights, 
to drive the spoils coalition from power. Washington 
knew nothing of the teaching of books ; it was the 
weak point of his public character ; but the alphabet of 
facts he understood as well as any man. When he 
returned to Mount Vernon to die, worn out in the 
service of a grateful and an admiring Republic, he 
understood that the system which he had made and 
set at work was one to be dominated by alternate 
factions, and that the system was not liberty. 

A popular and able historian of Scotland has 
asserted that the greatest uninspired production of 
prose literature is the farewell address of General 
Washington to his countrymen. Perhaps the paper 
deserves the exalted encomium ; for assuredly it con- 
tains much truth, but in no part so much as where it 
speaks in vehement condemnation of party govern- 
ment, such as he had founded. The farewell address 
had an illustrious origin. It was written by Hamilton 
and Madison, from heads supplied by Washington. 
It speaks eloquently and impressively of the dangers 
of faction to free government, and, if it stood alone, 
would render the address worthy of the eulogy of Sir 
Archibald Alison. In terms it was addressed to a people 
who had reposed happily and safely under the protection 
of the British Crown ; but it is a solemn warning to 
all nations to avoid the Republic, as it points to the 
gulf of fire into which, in frenzy, it finally throws itself. 



a form of Government. 25 1 

It is the voluntary testimony of three among the 
greatest men of the revolution, after eight years of 
Republican life, under a government framed with 
exquisite skill by the best talents of a continent. The 
opinions of the men who performed the penwork of 
the address we know ; but you who worship the hero- 
gods, attend to that of Washington, as, in immortal 
print, he descants on the instability and dangers of 
Republican government : " Party spirit," says this 
world's hero, " is inseparable from our nature, having 
its roots in the strongest passions of the human mind. 
It exists, under different shapes, in all governments, 
more or less stifled or repressed ; but in those of the 
popular form it is seen in its greatest rankness, and is 
truly their worst enemy. The alternate domination 
of one faction over another faction, sharpened by the 
spirit of revenge, natural to party dissension, which in 
different ages and countries has perpetrated the most 
horrid enormities, is itself a frightful despotism. But 
this leads at length to a more formal and permanent 
despotism. The disorders and miseries which result, 
gradually incline the minds of men to seek security 
and repose in the absolute power of an individual ; 
and sooner or later the chief of some prevailing fac- 
tion, more able or more fortunate than his competitors, 
turns this disposition to the purpose of his own eleva- 
tion on the ruins of political liberty." 

With this declaration in print before our eyes, we 
have no occasion to resort to tradition to be told that 
General Washington had lost confidence in the stability 
of the Democratic government which so recently he 
had established. His gloomy anticipations of the 
closing days of the great Republic would have been 
realized in its one hundredth anniversary, in the 
disputed election of Tilden and Hayes for the 
presidency of the Union, had not the catastrophe, 
with the consent of the factions, been averted by a 
reference of the controversy to an extraordinary 




252 The Repttblic as 

tribunal, whose action forms the subject of the ensu- 
ing chapter. 1 



CHAPTER XIV. 

THE ELECTORAL COMMISSION. 

HE Electoral Commission, and the events 
which produced it, present the Republic 
in an unprecedented aspect, and form a 
necessary part of a survey of the general 
working of the American constitution. 
It is inserted in juxtaposition with the extract from 
the farewell address, as it goes far to justify the pre- 
diction of Washington, that the Democracy of the 
United States, sooner or later, would end its wild 
career in domestic bloodshed and military despotism. 
To enable the unprofessional reader to comprehend a 
subject so far removed from the circle of his informa- 
tion and thoughts, it will be necessary to explain the 
origin and necessity of this unusual court. Actors 
and events will be treated with the freedom and im- 
partiality of history. 

A century had elapsed since a Congress of the 
colonies, deputed to obtain from the British Crown a 
redress of grievances, had proclaimed the indepen- 
dence of the colonies. The Republic was engaged in 
celebrating an anniversary of its unexpected and 
illegitimate birth, when the politicians seized the 
festive occasion to present their government to the 
nations in its true character. The factions, ante-dating 



1 Washington, January 21st, 1886. In the Senate, Mr. Sher- 
man, of Ohio, took the floor and said : " .... In 1877, the 
change of one vote would have altered the result. Civil war 
was only avoided by the contrivance of the Electoral Com- 
mission." (" New York Herald.") 



a form of Government. 253 

the existing genesis, but each under an alias % arc found 
waging the accustomed warfare, but upon a greatly 
expanded theatre. At first, principles of government 
and policy, distinct and lasting as the hills, had divided 
them ; but these, grown burdensome or inconvenient, 
had been flung aside by those combatants, and now 
the avowed object of the contention was to control,, 
for a presidential term, the wealthiest government in 
the world, having at its disposal, as a spoil for the 
victor, the custody of the public treasures and the 
disposition of a multitude of lucrative offices. The 
presidential election had been held, and the result 
made known, that Mr. Tilden, the Democratic candi- 
date, had been defeated by General Hayes, the 
Republican candidate, by one electoral vote. A 
majority so capricious and accidental at once aroused 
suspicion, and soon it was asserted by the inquisitive 
newspaper that that result had been produced by 
frauds of an unblushing character, perpetrated by 
the returning officers of the states of Florida and 
Louisiana. To discover the truth in respect to so 
grave a charge, it is necessary to examine an event 
so instructive in the methods of a free govern- 
ment. 

The Constitution of the Union in its second Article 
provides that : " The executive power shall be invested 
in a president of the United States of America. He 
shall hold his office during the term of four years, and, 
together with the vice-president chosen for the same term, 
be elected as follows : each state shall appoint, in such 
manner as the legislature thereof may direct, a number 
of electors equal to the whole number of senators and 
representatives to which the state may be entitled in 
Congress ; but no senator or representative, or person 
holding an office of trust or profit under the United 
States, shall be appointed an elector. The electors 
shall meet in their respective states and vote by ballot 
for president and vice-president, one of whom, at 



254 The Republic as 

least, shall not be an inhabitant of the same state 
with themselves ; they shall name in their ballots the 
person voted for as president and, in distinct ballots, 
the person voted for as vice-president ; and they shall 
make distinct lists of all persons voted for as president 
and of all persons voted for as vice-president, and the 
number of votes for each, which lists they shall sign 
and certify, and transmit sealed to the seat of govern- 
ment of the United States, directed to the president 
of the Senate; the president of the Senate shall, in 
the presence of the Senate and House of Represen- 
tatives, open all the certificates, and the votes shall be 
counted ; the person having the greatest number of 
votes for president shall be president, if such number 
be a majority of the whole number of electors ap- 
pointed ; and if no person have such majority, then 
from the persons having the highest number (not ex- 
ceeding three) on the lists of those voted for as 
president, the House of Representatives shall choose 
immediately, by ballot, the president. Congress may 
determine the time of choosing the electors, and the 
day on which they give their votes, which day shall 
be the same throughout the United States." 

The provisions of the Federal statutes applying to 
the subject are as follows : " Section 136. It shall be 
the duty of the executive of each state to cause three 
lists of the names of the electors of such state to be 
made and certified, and to be delivered to the electors 
on or before the day on which they are required by 
the preceding section to meet. 

" Section 137. The electors shall vote for president 
and vice-president respectively in the manner directed 
by the constitution. 

"Section 138. The electors shall make and sign 
three certificates of all the votes given by them, each 
of which certificates shall contain two distinct lists, 
one of the votes for president and the other of the 
votes for vice-president, and shall annex to each of 



a form of Government. 255 

the certificates one of the lists of the electors which 
shall have been furnished to them by the direction of 
the executive of the state." 

At first electors for president and vice-president 
were appointed by the state legislatures, but the 
mode was changed, and by direction of statute law, 
they were appointed by the qualified voters on the 
seventh day of November, the time appointed by the 
135th section of the Federal statutes, passed in pur- 
suance of the constitution, but not embraced in the 
above list of statutory legislation. In South Carolina, 
before the Civil War, electors were still appointed by 
the legislature, thus avoiding the tumult, agitation, 
and corrupt practices incident to a presidential elec- 
tion, and they are still so appointed in the state of 
Nevada. 

The election law of Florida resembles, in substance, 
the election law of every other state, the object of 
that class of enactments being to collect, at a final 
point, the votes given at the precinct elections, thereby 
ascertaining the candidate who has received the 
greatest vote in the state. It is a question of addi- 
tion, yet in Florida and Louisiana the board required 
to make it committed palpable frauds, and obvious 
perversions of the statute law. The election law of 
Florida provided as follows : " Upon the close of the 
polls the inspectors shall proceed to canvass the votes 
cast ; that the canvass shall be public and continuous 
until completed, and the votes shall then be counted. 
If the number of votes exceed the number of persons 
who have voted according to the clerk's list, the ex- 
cess is to be publicly drawn out by lot and destroyed. 
Duplicate certificates of the result are then to be 
sealed up and sent to the clerk of the Circuit Court 
and to the judge of the county. Upon the receipt of 
the returns from the voting places in the county, the 
judge and the clerk are directed to meet at the clerk's 
office, and, with the assistance of a justice of the peace 



256 The Republic as 

of the county, proceed publicly to count the votes, as 
shown by the returns on file, and forward the certifi- 
cates of the result to the secretary of state and the 
governor. Within thirty-five days after the election, 
the secretary of state, attorney-general, and clerk of 
the Supreme Court, are to meet at the office of the 
secretary of state and canvass the returns. If returns 
from any county shall appear, or be shown, to be so 
irregular, false, or fraudulent that the board shall be 
unable to determine the true vote for any such officer 
or member, they shall so certify, and shall not include 
such return in their determination and declaration, 
and the secretary of state shall preserve and file, in 
his office, all such returns and accompanying papers," 
It is apparent that this law confers on a board of 
state canvassers the authority, and imposes upon 
them the duty, to count the votes as they appear on 
the county returns, and declare the result, but to 
exclude such as are false, fraudulent, or irregular. It 
had been determined by the Supreme Court of Florida 
in 1870 that the duty of the board was simply minis- 
terial, after the genuine character of the county re- 
turns had been ascertained. On this point the court 
say : " The object of the law is to ascertain the 
number of votes cast and determine therefrom the 
number of votes cast, and certify the result of the 
election. It is the duty of the state canvassers to 
determine whether the papers received by them, pur- 
porting to be returns, were in fact such, and were 
intelligible, genuine, and substantially authenticated 
by law." These conditions being complied with, it 
was the duty of the board to canvass and count the 
votes, and, from the face of the papers, declare who 
were the elected candidates. It is now known, and 
admitted to be a fact, that if this direction of law had 
been obeyed, the Tilden, or Democratic electors, would 
have carried the state of Florida by a majority of 
ninety-one votes ; instead, the Hayes, or Republican 



a form of Government. 257 

electors were made to receive a majority of nine hun- 
dred and twenty of the popular vote. This result 
had been obtained by the board of canvassers through 
the exclusion, without the slightest colour of law, of 
the entire vote of one county and parts of the vote of 
three other counties. The ceremony of hearing 
witnesses and the arguments of counsel was observed 
by the board, sitting as a court, but its decision was 
withheld until the 6th day of December, the time 
indicated by law for the electors to assemble — a 
fraudulent contrivance on the part of the returning 
officers, as hereafter will fully appear. On that day 
it was announced that the Hayes electors had received 
a majority of the votes of Florida, and also the Re- 
publican candidate for governor, voted for at the 
same time, and on the same ballots, was declared to 
be elected. 

Upon that assumption of jurisdiction by the can- 
vassing board, sustained by the certificate of the 
Governor of Florida, and that of the canvassing board, 
the Republican case was admitted finally to stand 
before the High Court of the commissioners. 

The Republican Governor of Florida, in compliance 
with the Act of Congress, certified the election to 
the Hayes electors, whilst Attorney-General William 
Archer Cocke, honourably known in the world of 
letters, as in his profession, certified the election of 
the Tilden electors. Each college of electors voted 
on the designated 6th day of December, and each 
in its mode of proceeding complied with the terms of 
the law. As soon as it was announced that the can- 
vassing board had given certificates of election to the 
Hayes electors, as the governor had done, an action 
at law was instituted by the Tilden electors to try the 
title to the office of elector in dispute between the two 
sets of electors. At a later day, a decision was ren- 
dered in the case, condemning as vicious the title of 
the Hayes electors. To that suit the defendants 

s 



258 The Republic as 

pleaded, and, in the proceedings, the votes, as returned 
to the state canvassers, were subjected to the scrutiny 
of a legal tribunal, but judgment could not be ren- 
dered until a day subsequent to that on which the 
college of electors had voted, but prior to the time 
when the certificates were opened in the presence of 
the two Houses of Congress by the President of the 
Senate and the votes counted by tellers. 

From this abortive judgment of the court, rendered 
when no judgment of ouster could be given, we under- 
stand why the certificates of election were withheld by 
the board of canvassers until the last moment. At the 
same time a suit was brought by the Democratic candi- 
date for the governorship for a mandamus to direct the 
state board of canvassers to re-canvass the vote in the 
Gubernatorial election, according to the laws of Florida. 
The Supreme Court of the state, composed of a ma- 
jority of Republican judges, rendered a judgment, in 
that proceeding, that the board of canvassers had ex- 
ceeded its powers, and had usurped a revisory juris- 
diction over the returns from certain counties, and 
commanded it to canvass and count the votes as 
returned from those counties. Another canvass of 
the vote was made accordingly, and Governor 
Drew, the Democratic candidate, who had received 
Tilden's vote in the election, as his opponent had re- 
ceived Hayes' vote, was declared duly elected by the 
aforesaid majority in the state of Florida. In this in- 
direct and collateral way the controversy between the 
presidential candidates was examined, and the result 
declared that Tilden and Hendricks, illegally and 
fraudulently, had been deprived of Florida's vote. 

But the investigation did not stop here. All the 
energy of the Democratic majority in Florida was 
aroused. In the month of January, 1877, the legis- 
lature of Florida convened. Immediately a law was 
enacted which directed the Secretary of State, the 
Attorney-General, and the Comptroller of Public 



a form of Government* 259 

Accounts, or any two of them, together with any other 
member of the Cabinet who might be designated by 
them, forthwith to meet at the office of the Secretary 
of State, pursuant to a notice to be given by the 
Secretary of State, and form a board of state can- 
vassers, and proceed to canvass the returns of the 
election of president and vice-president, held on the 
7th of November, 1876, and determine and declare 
who were elected and appointed electors at the said 
election, as shown by the returns on file in the office 
of the Secretary of State. That a greater authority 
might be imparted to the projected canvass, the Act 
of the Legislature further enjoined on that new board 
to canvass the returns according to the terms of the 
fourth section of the Statute of 1872, as construed by 
the Supreme Court of Florida in the case of Bloxham 
versus Gibbs and others, decided in 1871, and in that 
of Drew versus McLin and others, decided September 
23rd, 1876. The board of canvassers are also instructed 
to make and sign a certificate containing the whole 
number of votes given for each elector, the number of 
votes given for each person for such office, and therein 
declare the result, which certificate was ordered to be 
recorded in the office of the Secretary of State, who 
was instructed to have it advertised in one or more 
newspapers published at the seat of government, that 
the people of Florida and the people of the United 
States might be informed of the truth. In obedience 
to that Act of the Legislature of Florida, the new board, 
by it authorized, examined the polls, and executed a 
certificate in these words : " That Wilkerson Call (and 
the other Tilden electors by name) are duly elected, 
chosen, and appointed electors of the president and 
vice-president of the United States for the state of 
Florida." 

All that had been done up to this time had only, by 
unquestionable evidence, established the fact that the 
Democratic party, in the November elections, Federal 



260 The Republic as 

as well as state, had obtained the vote of Florida if 
the right could be made to prevail. Except for this 
ascertainment and certification of the truth, the action 
of quo warranto against the Hayes electors was a 
barren victory, as no judgment qf ouster could be pro- 
nounced ; the mandamus of the Supreme Court to 
compel the mandatory to re-canvass the votes in the 
Gubernatorial election had inured practically only to 
the advantage of Governor Drew, who, because of it, 
was inducted into office ; and the re-canvass, conducted 
under the Statute of January 17, 1877, had only given 
the Legislature of Florida to understand and be in- 
formed that the Tilden and Hendricks electors, on 
November 7, 1876, had received 24,437 votes against 
24,349 votes polled for the Hayes and Wheeler elec- 
tors. The truth having been vindicated, and recorded 
in the archives of Florida, as well as officially declared 
to the public, the Legislature of Florida, charged by 
the Federal constitution with the duty of directing the 
manner in which presidential electors shall be ap- 
pointed, adopted a bolder line of action, designed to 
bring the discovered fact and fraud directly and offi- 
cially to the knowledge of the President of the Senate, 
or of any other person or persons who might count 
the electoral votes transmitted from the states. The 
object of that energetic action was to cure any irregu- 
larity that might attach to the certificate of Attorney- 
General Cocke by making it known to the Senate and 
House of Representatives met in convention, and 
known too to the President of the Senate, that Wilkin- 
son Call and his associated electors were the true and 
only electors of Florida, and thus save that state to 
the candidates entitled to its suffrage. A state legis- 
lature acting in the sphere of its jurisdiction is possessed 
of a mass of inherent sovereign powers, and that sove- 
reignty expressed itself in the statute now to be 
described. 

That statute received the Governor's approval the 



a form of Government. 26 r 

26th day of January, 1877. Its title was, " To declare 
and establish the appointment by the state of Florida 
of electors for president and vice-president/' and in 
that way cure the effect of any irregularities which may 
have occurred in their appointment by the electoral 
college. The statute affirmed that on the seventh day 
of November, 1876, at the election then held, accord- 
ing to the county returns on file in the office of the 
Secretary of State, and by a canvass of the votes which 
had been made by the command of the legislature, 
Wilkinson Call and his associated electors had received 
a majority of the votes amounting to 92, and had been 
duly appointed electors in such manner as the legis- 
lature of the state had directed; that the late Governor, 
illegally and erroneously, did cause to be made and 
certified lists of electors to persons who had not re- 
ceived the highest number of votes, and withheld them 
from the electors entitled to receive them. It then 
declared the electors shown to have a majority, by a 
re-canvass of the votes, to be the true electors alone 
having the right to cast the vote of Florida. Next 
the statute contained an appointment of the Tilden 
electors, to save the state in case both sets of electors 
might be adjudged to have held by a defective title. 
The statute also provided for a lawful and conclusive 
authentication of the right of those electors declared 
to be the true ones, to cast the vote of the state and 
for the issuing of two certificates to the electors by the 
board of state canvassers and the Governor, so as to 
comply with the terms of the Act of Congress. 

The electors again convened, and on the 26th of 
January cast their vote for Tilden and Hendricks, and, 
accompanied by the certificate of Governor Drew and 
their own certificate, sent the papers to the President 
of the Senate. Under cover with the certificate of the 
Governor of Florida were official copies of the two 
statutes, with an authenticated copy of the votes from 
the several counties, as canvassed by the state can- 



262 The Republic as 

vassers, and also in tabulated form ; and with these 
papers was sent the certificate of the state canvassing 
board. It could not then be a subject of a moment's 
doubt that the Electoral Commission and the two 
Houses of Congress were apprized of the fact that the 
Tilden electors, according to the recorded vote, had 
received the suffrage of Florida. The result of the 
illegal action of Governor Stearns and the canvassing 
board was to give General Hayes four votes which 
belonged, according to the law of Florida, to Tilden, 
reversing, as we have been informed, the result of a 
presidential election. 

In Louisiana a similar result was accomplished by 
means not dissimilar. In that state, by a statutory 
creation called a returning board, Tilden and Hend- 
ricks were defrauded of eight other electoral votes. 
The crimes committed in the two states differed only 
in circumstance and scene of action — they were indeed 
but branches of the same conspiracy of the Republican 
party against the constitution. The returning board, 
unconstitutional in the opinion of such great lawyers 
as Thurman and Carpenter, had discretionary power 
conferred on it in particular cases over the election 
returns. In a case to which the discretion did not ex- 
tend, they exercised power over the returns and re- 
jected many thousand votes legally cast and legally 
returned for the Democratic electors. In this way the 
vote of Louisiana was given to the Republican electors. 
Such was the charge coming from New Orleans, which 
electrified the Union, producing indignation wherever 
it was known or repeated. 

The law of Louisiana required, as a condition of 
suffrage, a registration of all the qualified voters, 
and supervisors of registration, with their clerks, were 
appointed in every parish by the Governor of the state 
to give effect to the statute. They were directed to 
hold a session of thirty days previous to an election 
to determine applications for registry. No appeal 



a form of Government. 263 

lay from their decisions, and, if wrongful, no redress 
was afforded, unless obtainable by an action at law 
by the aggrieved party. The supervisors of registra- 
tion had power also to designate the voting places 
in each parish, the voter being allowed the privilege 
of voting at any polling precinct within it. The law 
also provided : " That immediately upon the close of 
the polls on the day of the election the commisioners 
of election, at each voting place, should immediately 
proceed to count the votes, as provided by the thir- 
teenth section of the Act, and after they had so counted 
the votes and made a list of the names of all persons 
voted for, and the offices for which they were voted, 
and the number of votes received by each, the 
number of ballots contained in the box and the 
number rejected, and the reasons therefor, duplicates 
of such lists shall be made out, signed, and sworn to, 
by the commissioners of election of each poll, and 
such duplicate lists shall be delivered, one to the 
supervisor of registration of the parish, and one to 
the clerk of the district court of the parish, and in 
the parish of New Orleans to the Secretary of State, 
by one or all such commissioners in person within 
twenty-four hours after the closing of the polls. It 
shall be the duty of the supervisor of registration, 
within twenty-four hours after the receipt of all the 
returns from the different polling places, to consolidate 
such returns, to be certified as correct by the clerk of 
the District Court, and forward the consolidated returns 
with the original received by him to the returning 
officers, as provided by the Act, the said report and 
returns to be enclosed in an envelope of strong paper, 
or cloth, securely sealed and forwarded by mail. He 
shall forward a copy of any statement as to violence, 
or disturbance, bribery, or corruption, or other offences, 
specified in section 26 of the Act, if any there be, 
together with all memoranda and tally sticks used in 
making the count and statements of the vote." 



264 The Republic as 

It was also provided by the election statute that, 
prior to the election day, the supervisor or the com- 
missioner of election, on election day, might protest 
against the freedom or fairness with which the regis- 
tration or election had been conducted, and if accom- 
panied, or supported, by the affidavits of three citizens 
or more, that protest should be attached to the returns 
" by paste, wax, or some adhesive substance, that the 
same can be kept together and forwarded to the 
returning board." A duplicate of the protest is also 
directed by the statute to be filed with the clerk of 
the court of the parish. 

At the Presidential election of 1876 the returns 
forwarded to the returning board disclosed a majority 
for Tilden and Hendrick's electors of 6,405 votes, un- 
accompanied by a single statement or complaint of 
"riot, tumult, bribery, or corruption," and but one 
complaint at all, and that was of a Republican fraud in 
Concordia parish. The returning board of Louisiana, 
under the peremptory directions of the Election Act, 
on that state of facts, had to perform the simple duty 
to canvass and compile the votes, and certify the result 
according to the truth. In 1874 this had been decided 
to be the proper constuction of the law by a committee 
of the House of Representatives of Congress. In their 
report the committee said : 

" Upon this statute we are all clearly of the opinion 
that the returning board had no right to do anything 
except to canvass and compile the returns which were 
lawfully made to them by the local officers, except in 
cases where they were accompanied by the certificates 
of the supervisor or commissioner, as provided in the 
third section. In such cases the last sentence of that 
section shows that it was expected they would exer- 
cise ordinarily the grave and delicate duty of investi- 
gating charges of riot, tumult, bribery, or corruption, 
on a hearing of the parties interested in the office. It 
never could have been meant that this board, of its 



a form of Government. 265 

own motion, sitting in New Orleans, at a distance from 
the place of voting, and without notice, would decide 
the right of persons claiming to be elected." 

But the returning board, resolving itself into a 
court, encouraged, out of time and out of order, 
accusations from various sources against the elections 
in various localities, and concluded by throwing out 
polls enough to give the vote of Louisiana to the 
Hayes electors instead of to the Tilden electors, to 
whom by a large majority it belonged — as was then 
being done in Florida; for the Republican party, it is 
repeated, were running both machines at the same 
time. It was weightily observed by one of the com- 
missioners: "None of the objections to the certificates 
requires any scrutiny of the votes cast at the primary 
election, or calls in question the returns made by the 
officers who presided in the precincts. Throughout, 
the controversy has respect to the conduct of the 
state board of canvassers in dealing w T ith the returns 
made by the county canvassers;" 1 of which authentic 
records had been preserved in the counties and parishes, 
to serve as a testimony of how those two states had 
voted in that presidential election. 

In Louisiana the choice of electors and their certi- 
fication was complicated with the claims to office of 
two governors representing the rival political parties, 
and embarrassing questions of law arose out of that 
conflict for the adjudication of the High Court of Com- 
mission. But the core of the matter, for the purpose 
of this chapter, has been given — which was to discover 
the point of the controversy and how it was dealt 
with by the Grand Council of Arbitrators created 'by 
Congress to decide that dangerous and agitating ques- 
tion. The electoral votes of Oregon and South 
Carolina were also claimed by each of the disputing 
factions ; but these cases will not be examined here, 

1 Judge Nathan Clifford. 



266 The Republic as 

for the reason that when judgment was pronounced 
every commissioner voted against the pretension of 
the Democratic claimant in each case, and this not- 
withstanding the powerful and indignant protest of 
the great Democratic statesman and lawyer, Hon. 
Jeremiah S. Black of Pennsylvania, who to all the 
lore of his profession added the adornments of the 
scholar and orator, united with the noblest dispositions 
of a gentleman and the highest gifts of intellect. 

When Congress assembled the public anxiety grew 
more intense. Debate increased it, whilst rumour 
plied all her arts. A report got into circulation that 
the Republican President of the Senate claimed the 
constitutional prerogative to count the electoral votes 
of the states and declare the result of the election, 
and that the Republican majority in the Senate would 
uphold him in that pretension. By this action on 
the part of the Senate and its presiding officer, the 
acts of the returning officers in Florida and Louisiana, 
and the false certificates of the two Governors, would 
be sustained and stamped as in accordance with law. 
If this were done, and submitted to, a revolution in 
government would be achieved, and the supremacy of 
the Republican party perpetuated by a minority of 
the voters in treaty with election frauds — consigning 
the Republic at once and for ever to a dishonoured 
tomb. There was high precedent, and assured con- 
stitutionality, to support that claim of the Republican 
party, for that course had been pursued when Wash- 
ington was announced as President of the United 
States by the President of the Senate in the presence 
of the two Houses of Congress, sitting in convention. 
A certain sanctity appeared to attach to the proceed- 
ings of the first Congress, in point of time so near to 
the Convention of 1787, containing too so many of 
the bright intellects who had united in the creation 
of the constitution, in this particular then construed. 
There is, or ought to be, a respect attached to every 



a form of Government. 267 

record, and this is the record in that case as found in 
the annals of Congress: " Monday, April 6, 1789. 
The speaker and members of the House of Representa- 
tives attended in the Senate chamber, and the presi- 
dent elected for the purpose of counting the votes 
declared that the Senate and House of Representatives 
had met, and that he, in their presence, had opened 
and counted the votes of the electors of president and 
vice-president of the United States, which were as 
follows," etc. 

It was reported and believed, and the report added 
to the public excitement, that the President of the 
United States, His Excellency U. S. Grant, com- 
manding the military and naval forces of the Union, 
adopted this view of the constitution, and that he 
would secure the induction into office of the candi- 
date by that authority adjudged to be elected his 
successor. If this were done it was determined by 
the opposing party that Tilden and Hendricks, the 
undoubted choice of the voters, should be inaugurated 
by the Democratic House of Representatives. This 
action on the part of the two Houses of Congress 
would give to the Republic two presidents and two 
vice-presidents, and thus the long predicted war of 
the factions would have begun, bringing the end of 
American liberty according to the forms of the consti- 
tution. The public interest quickened, and its pulse 
beat fast, when President Grant ordered a detach- 
ment of artillery to the Federal city, and camped 
them near to the capitol, to be ready by inauguration 
day, and a convention of hundred thousand armed 
Democrats was projected to meet likewise in Wash- 
ington to see that Tilden got his rights. But the 
public anxiety, grown so intense, was relieved by the 
co-operative action of the two Houses of Congress, 
out of which grew the Electoral Bill, which made pro- 
vision for an amicable settlement of the presidential 
question, to which the factions were pledged to submit. 



268 The Republic as 

Mr. Jenks, a leading Democratic member in Congress, 
and an able advocate before the commission, ex- 
pressed the universal opinion when he said : " The 
electoral commission is the last arbiter instead of a 
resort to arms." It was a question what part the 
late Confederate States would take in the pending 
quarrel, for in sixty days they could put in the field 
one hundred thousand of Lee's and Johnston's veteran 
soldiers. A member of Congress from Virginia, who 
had been a Confederate general, and who thus had a 
right to speak for the gray uniform, said : " We will 
wait until you Northern men are well engaged in this 
new war, and then we will strike for fair elections." 

The Electoral Bill was a novelty in politics. It 
provided a court of lawyers to decide a great question 
of state. It had been boasted that it was a splendid 
attainment of a Christian civilization when armed 
nations, instead of the appeal of battle, referred their 
controversies to umpires. The trial by battle, as a 
mode of deciding the right, had been long disused in 
the common law courts. Now it was discarded from 
the tribunal of nations, and the Republic of the 
United States presented the sublime spectacle of 
compelling two truculent factions to bow to the same 
serene authority. Honourable Ashbel Green, from 
New Jersey, observed in a speech before the commis- 
sion, that if the Electoral Bill determined nothing else, 
it had settled that the President of the Senate was not 
the authority designated by the constitution to count 
the electoral vote, but that high and delicate function 
of state was to be exercised by a convention of the 
two Houses of Congress, subject to the advice, when 
they chose to ask it, of such a court as the electoral 
commission. That eminent lawyer was right. The 
electoral law was a very solemn legislative construc- 
tion of the constitution, and quite annulled and blotted 
out the precedent set in the first Congress. Our 
minds no longer are manacled : we breath freer when 



a form of Government. 269 

independence of thought is asserted and blind un- 
questioning obedience is refused to the example of 
the first Congress. 

It is proper that the structure of the High Court of 
Commission should be understood, and the mode in 
which the electoral questions were brought before it, 
as well as the extent and nature of its jurisdiction, 
before we proceed to examine its decision. 

The Act of Congress, styled the Electoral Bill, 
provided that the commission be composed of five 
senators, to be chosen by the Senate, and five members 
of the House of Representatives, to be designated by 
that body, who should be associated with four judges 
of the Supreme Federal Court indicated by the circuits 
to which they were assigned, and one other judge of 
the Supreme Bench to be chosen by the four judges. 
This seemed to be very fair, and was so until the 
fifteenth member of the commission was elected, for 
the court was equally divided between the two politi- 
cal parties. Evidently, the most difficult part of the 
work was to obtain an impartial odd man, for upon 
him the inclination of the scale would at last depend, 
if partisan politics were to rule in the court as they 
had determined the appointment of every other com- 
missioner. It was suggested in the public prints that 
the odd man should come from abroad. One said he 
should be His Serene Highness Prince von Bismarck, 
or the Chief Justice of England should be selected ; 
another, that the great controversy ought to be re- 
ferred to one of the crowned heads of the continent, 
to the Emperor Frederick, or the Czar, or to His 
Majesty of Austria-Hungary. But none of these 
propositions satisfied the Democracy of the American 
Republic. It was thought the dignity of the Republic 
demanded that she should not go out of herself to 
determine her domestic differences, and Congress, 
acting on this principle, took the most prudent course 
that the case would allow. The law r , after directing 



2 jo The Republic as 

that the odd man should be taken from the Supreme 
Federal Court, proceeded to say that he should be 
selected with reference to his " impartiality and free- 
dom from bias " — an honourable distinction which the 
fifteenth commissioner, when picked out, merited by 
voting with the Democrats on immaterial occasions. 
It would have demanded an Aristides to comply with 
the description of Congress, and there was no Aristides 
among the Republican judges of the Supreme Federal 
Court. Counting the odd man according to his poli- 
tical affiliations, to which, when the final votes were 
given, he adhered with the tenacity of a ward politi- 
cian, the Electoral Commission, at the period of its 
organization, stood eight Republicans to seven Demo- 
crats. The people, looking on the novel spectacle, said 
in their homely way : " Eight will out-vote seven." At 
the time of their appointment there was some high 
talk in the country of the severe justice to be obtained 
by the introduction of five Supreme Court judges into 
the commission. But a wise man observed : " The 
judges, equally as the politicians, will stick to their 
party, and vote the crown to Hayes. There is not 
the slightest chance for Tilden from that direction/' l 

The Federal statute further directed that when there 
shall be contesting electoral certificates sent to the Presi- 
dent of the Senate, and opened by him in the presence 
of the two Houses, there might be written objections 
to each certificate filed by senators and representatives, 
and all certificates, votes, and papers accompanying 
the same, together with such objections, shall be forth- 
with submitted to the commission, which shall proceed 
to consider them. That high court of arbitration, to 
enable it to perform the duty thus devolved on it, was 
endowed by the Electoral Act with all the powers in 
that regard which were possessed by the two Houses 
acting separately or in conjunction. That court, 

1 My deceased friend, Major Rice W. Payne, of Warrenton, 
Virginia. 



a farm of Government, 271 

advisory to the two Houses, was instructed to decide, 
by a majority of votes, " whether any or what votes 
from such states are the votes provided for by the con- 
stitution of the United States, and how many and 
what persons were duly appointed electors in such 
states, and may therein take into view such petitions, 
depositions, and other papers, if any, as shall by the 
constitution and now existing law be competent and 
pertinent to such consideration." The question ulti- 
mately turned upon the admissibility of evidence of 
the perpetration of frauds charged upon the returning 
officers. The Electoral Bill was drawn by a Repub- 
lican senator, known to be one of the ablest lawyers 
in the Union. It will instruct us in the genius of 
American politics to have laid bare the purpose of the 
draftsman by a distinguished advocate of the Repub- 
lican party before the commission. Mr. Stoughton, 
of the New York bar, said : u The law under which 
this commission was created is an extraordinary exhi- 
bition of subtlety and care. It had a subject to deal 
with not easy of solution. We know all the surround- 
ing circumstances ; we know the causes which led 
to the framing of the bill ; we know why its language 
was couched so inexpressively of power delegated 
here. We know that conflicting opinions were to be 
harmonized, not by uniting upon language which had 
meaning, but by that which, for certain purposes, con- 
veyed none — I mean none as to the expression of an 
opinion of Congress." 

When in the roll of states Florida was called, the 
President of the Senate opened three electoral certifi- 
cates marked by the commission as numbers 1, 2, 3, 
with which, and their accompanying papers, already 
we are acquainted, and they were all referred to the 
commission for disposition. When we break through 
the shell of the case, and get around all interposed 
obstacles, the question referred to the commission was 
this : Which set of electors had been deputed by 



272 The Republic as 

Florida, and which by Louisiana, in the recent national 
election, to cast their votes for president and vice- 
president ? It was a question of fact. Any compe- 
tent tribunal, disposed to do the right, could have per- 
formed that duty easily and quickly by having recourse 
to the records of their electoral votes jealously pre- 
served in those states by public authority, under the fifth 
rule of the commission — a command, a subpoena duces 
tec2im, issued by the clerk to the depositaries of those 
records, to produce them to the commission for inspec- 
tion, would have attairijecf that object In the case of 
Florida that record had thrice been examined by a 
revising authority : once by the circuit court of Leon 
county, in the quo warranto suit between the two sets 
of electors ; the second time in the mandamus case of 
Governor Drew, before the Supreme Court of Florida ; 
the third time by a special board appointed under a 
statute of Florida; and the record, preserved in the 
office of the Secretary of State, where it still is, could 
have been interrogated a fourth time by the commision 
had they so minded. The records in each case had 
been vouched, and the cases ought to have been heard 
and determined according to the evidence of those 
records, in conformity with the common law, whose 
authority was so often invoked by the judges and 
lawyers of the commission, but in this instance invoked 
in vain. 1 

1 Judge Black was very emphatic and persistent in claiming 
the authority of the records. I quote from his speech in the 
Florida case (Electoral Count, pp. 98-9) : " In this case we show 
that it was fraudulent. How ? by producing the evidence, which 
the Governor was as well aware of as we are, which every man, 
woman, and child in this nation knew, or had reason to believe, 
was true, namely, that the other set of electors had a decisive 
and clear majority of the votes that were received and counted 
at the polls. He knew it, because it was recorded in every 
county of his state ; and the votes were collected together and 
filed in the office of the Secretary of State. That is one way in 
which we show the falsehood and the fraud ; but we show i 



a form of Government. 273 

Sir Edward Coke was Chief Justice of England in 
the reign of King James I., and is the Delphic oracle of 
the common law. He lays it down as a rule that, where 
a case is evidenced by a record, it must be tried by 
the record, and by nothing else. A certificate of its 
contents is not admissible evidence to prove the con- 
tents of the record. The great English lawyer says : 
" A record, or enrolment, is of so high a nature, and 
importeth in itself such absolute verity, that if it be 
pleaded there is no such record, it shall not receive 
any trial by witness, jury, or otherwise, but only by 
itself." The record must be brought into court that 
it may be inspected by the judges, and its contents 
ascertained. When the vote of Florida, or Louisiana, 
was questioned by the challengers, or doubt raised by 
competing certificates, or by other means, it was the 
evident duty of the counting authority, whoever that 
might be, to have sent for the record and have in- 
spected it in the face of the public. But the commis- 
sion, the substituted agent of the convention of the 
two Houses, entertained scruples of law which inter- 
posed. They were barred, those learned judges said, 
from looking at the record by two certificates of its 
contents, one executed by the governor of the state, 
the other executed by the returning officers, although 
both certificates were impeached as false and fraudu- 
lent by the most respectable authorities. Never before, 
where the common law of England was held in respect, 
or any other civilized code of laws, was an impeached 
certificate of the contents of a record accepted, when 

again," &c. But Charles O'Conor, the great American lawyer 
of his day, was not less emphatic as to this matter than his col- 
league : "If they (the board of state canvassers) are not state 
officers, then we have done with the canvass of the state board, 
and have only to look, in case you pass by the governor's cer- 
tificate, to the next element of truth, and that is the whole set of 
county returns, which being footed up would show the result to 
be as we claim, and that the governor's certificate was utterly 
false." {Id. p. 132.) 

T 



2 74 The Republic as 

the record was in existence and accessible, and where 
it was claimed by one of the litigants as the witness 
who should testify in his behalf. 

With a change of name, the case of Florida, as we 
know, was the case of Louisiana, in respect to the 
pivotal point. The Northern authority had sent its 
armies to the capitals of those states on the errands of 
war, and could have sent its marshals to them on an 
errand of peace and justice, to have obtained the 
evidence preserved by those states with sedulous care, 
of the manner in which they had voted in the national 
election in 1876. These records were not allowed to 
speak and tell what their contents were, but what is 
called technical law was suffered to fetter and control 
the award of the court. In consequence — it seemed 
to have been the objective point in each case — electors, 
authorized neither by Louisiana nor Florida, were 
suffered to intrude into the electoral office with false 
certificates in their hands as a passport. The result 
was that twelve votes were allowed by the overseeing 
and counting authority for the Republican candidates 
which the voters had given to the Democratic candi- 
dates. It was equivalent to allowing the returning 
officers, and the governors of those states, by the effect 
of their certificates, to appoint the electors from those 
states, and it might be repeated in any presidential 
election in any state. This was what the eight com- 
missioners decided to be law. Be it known and held 
in remembrance that this studied affront to law and 
justice was not offered by an obscure county court, 
holding its sessions on the frontiers of the Union, 
where a wild-cat law is supposed to be administered, 
but by the highest national court, an extraordinary 
court, constituted to find out truth and do justice, 
sitting in the capitol of the Great Republic ! One of 
the commissioners, Mr. Justice Nathan Clifford, in 
language which deserves to be known and remem- 
bered, condemned that perversion of political and 



a form of Government. 275 

private right: "Without the right to introduce evi- 
dence, a trial, in any case, is a mockery, and in this 
case the refusal to hear evidence is the height of in- 
justice, as it amounts to an ex parte decision in favour 
of the persons claiming title under certificates No. 1, 
without having examined or considered any one of 
the objections filed to that supposed muniment of 
title. Such a decision is forbidden by every con- 
sideration of law and justice. It will shock the public 
sense, and when a knowledge of it reaches other lands 
it will shock the wise and just throughout the civi- 
lized world." 

The judgments in the cases of Florida and Louisi- 
ana are records of the United States, and ought to 
speak for themselves ; and first the judgment in the 
case of Florida : " The Electoral Commission, men- 
tioned in the said Act, having received certain certifi- 
cates, and papers purporting to be certificates, and 
papers accompanying the same, of the electoral votes 
of the state of Florida, and the objections thereto, 
submitted to it under said Act, now report that it has con- 
sidered the same pursuant to said Act, and has decided, 
and does hereby decide, that the votes of Frederick 
Humphreys, Charles H. Pierce, William H. Holden, 
and Thomas W. Long, named in the certificate of M. 
L. Stearns, governor of the said state, which votes are 
certified by the said person, as appears by the certifi- 
cate submitted to the commission as aforesaid, and 
marked No. 1 by said commission, and hereby re- 
turned, are the votes provided by the constitution of 
the United States, and that the same are lawfully to 
be counted as therein certified, namely, four votes for 
Rutherford B. Hayes of the state of Ohio for pre- 
sident, and four votes for William A. Wheeler for 
vice-president. 

"Thecommissionhas also decided, and hereby decides 
and reports, that the four persons before named were 
duly appointed electors in and by the state of Florida. 



276 The Republic as 

" The ground of the decision, stated briefly, as re- 
quired by the said Act, is as follows : That it is not 
competent under the constitution and the law, as it 
existed at the passage of the date of the said Act, to 
go into evidence aliunde the papers opened by the 
President of the Senate in the presence of the two 
Houses, to prove that other persons than those regu- 
larly certified to by the governor of the state of 
Florida, in and according to the determination and 
declaration of their appointment by the board 
of state canvassers of said state prior to the time 
required for the performance of their duties, had been 
appointed electors, or by counter-proof to show that 
they had not, and that all the proceedings of the court, 
or Acts of the legislature, or of the executive of Florida, 
subsequent to the casting of the votes of the electors 
on the prescribed day, are inadmissible for any such 
purpose. 

" As to the objection made to the eligibility of Mr. 
Humphreys, the commission is of opinion that, without 
reference to the question of the effect of the vote of 
an ineligible elector, the evidence does not show that 
he held the office of shipping commissioner on the day 
when the electors were appointed. 

" The commission has also decided, and does 
hereby decide and report, that as a consequence of 
the foregoing, and upon the grounds before stated, 
neither of the papers purporting to be certificates of 
the electoral vote of the said state of Florida, num- 
bered two (2) and three (3) by the commission, and 
herewith returned, are the certificates or votes pro- 
vided for by the constitution of the United States, 
and that they ought not to be counted as such." 

On February 19, 1877, in the assembly of the two 
Houses, the opinion in the case of Louisiana was read by 
the Secretary of the Senate as follows : " The Electoral 
Commission mentioned in the said Act, having received 
certain certificates, and papers purporting to be certi- 



a form of Government. 277 

ficates, and papers accompanying the same, of the 
electoral votes in the state of Louisiana, and the 
objections thereto, submitted to it under the said Act, 
now report that it has duly considered the same, pur- 
suant to said Act, and has by a majority of votes 
decided, and does hereby decide, that the votes of 
William P. Kellogg (and his seven associates), named 
in the certificate of William P. Kellogg, governor of 
said state, which votes are certified by said person, as 
appears by the certificates submitted to the commis- 
sion, as aforesaid, and marked numbers one (1) and 
three (3) by said commission, and herewith returned, 
are the votes provided by the constitution of the 
United States, and that the same are lawfully to be 
counted as therein certified ; namely, eight (8) votes 
for Rutherford B. Hayes of the state of Ohio for 
president, and eight (8) votes for Wiliam A. Wheeler 
of the state of New York for vice-president. The 
commission has, by a majority of votes, also decided, and 
does hereby decide and report, that the eight persons 
above named were duly appointed electors in and by 
the state of Louisiana. The brief ground of this 
decision is, that it appears upon such evidence as by 
the constitution and law named in said Act of Congress 
is competent and pertinent to the consideration of 
the subject, that the before mentioned electors appear 
to have been lawfully appointed such electors of 
president and vice-president of the United States for 
the term beginning March 4, A.D. 1877, of the state of 
Louisiana, and that they voted as such at the time 
and in the manner provided by the constitution of the 
United States and the law. 

" And the commission has, by a majority of votes, 
decided, and does hereby decide, that it is not com- 
petent under the constitution, and the law as it existed 
at the date of the passage of said Act, to go into 
evidence aliunde the papers opened by the President 
of the Senate in the presence of the two Houses, to 



278 The Republic as 

prove that other persons than those regularly certified 
by the governor of the state of Louisiana, on and 
according to the determination and declaration of 
their appointment by the returning officers for election 
in the said state prior to the time required for the 
performance of their duties, had been appointed elec- 
tors, or by counter-proof to show that they had not, 
or that the determination of the said returning officers 
was not in accordance with the truth and the fact : 
the commission, by a majority of votes, being of 
opinion that it is not within the jurisdiction of the 
two Houses of Congress, assembled to count the votes 
for president and vice-president, to enter upon a trial 
of such questions. 

"The commission, by a majority of votes, is also of 
opinion that it is not competent to prove that any of 
said persons, so appointed electors as aforesaid, held 
an office of trust or profit under the United States at 
the time when they were appointed ; or that they were 
ineligible under the laws of the state, or any other 
matter offered to be proved aliunde the said certifi- 
cates and papers. 

" The commission are also of opinion, by a majority 
of votes, that the returning officers of election, who 
canvassed the votes at the election, were a legally 
constituted body by virtue of a constitutional law, 
and that a vacancy in said body did not vitiate its 
proceedings. 

" The commission has also decided, and does hereby 
decide, by a majority of votes, and report, that as a 
consequence of the foregoing, and upon grounds here- 
tofore stated, the paper purporting to be a certificate 
of the electoral vote of the said state of Louisiana,, 
objected to by T. O. Howe and others, marked/ N. C. 
No. 2 ' by the commission, and herewith returned, is 
not the certificate of the vote provided for by the con- 
stitution of the United States, and that they ought not 
to be counted as such." 



a form of Government. 279 

Eight names were signed to the two judgments — 
a great array of ability and learning ; but there was 
another array of seven names, not less imposing, who 
dissented from the technical law, and decided that the 
evidence proving fraud should be heard, that the case 
should be examined according to the facts, and that 
the counting authority, or its substitute the com- 
mission, was competent to that duty. By all codes 
estoppels are odious, and here was an estoppel pleaded 
in nature, if not in name. One of the Democratic 
commissioners was General Eppa Hunton, an officer 
of distinguished merit in the Confederate army, and 
an able lawyer from Virginia. In the House of 
Representatives of Congress, by force of ability and 
character, he had put himself among the leaders of 
the Democratic party in the House, and was selected 
by it to sit in that high court. Another was Senator 
Allen G. Thurman, of Ohio, born in Virginia, one of 
Cornelia's brightest jewels, and the only man of this 
day who talks like Webster — with his breadth and 
clearness. These seven able and learned judges, lovers 
of good and haters of evil, said, one and all, that the 
evidence in the two cases charging and proving fraud 
should be brought forth and heard. The light of 
truth, as the light of the sun, comes from God, and it 
was the commission's duty to open their windows and 
let it come in, that it might shine upon them. The 
commission, among the papers contained in the third 
certificate from Florida, had a certified copy of the 
election record, kept in the office of the Secretary of 
State ; but the majority of the commission paid no 
attention to a certified copy of the record, under the 
seal of a sovereign state, nor would they send for the 
original record. Such, in the centennial year, was 
political justice as administered in the capital of the 
Great Western Republic. 

If it be not presumption in one, who has been but 
an idler in the laborious field of the law, to attempt to 



280 The Republic as 

glean a sheaf of the precious wheat, following after a 
band of such trained harvesters with whetted hooks 
as the commission, and their satellites of the bar, I 
would, with humility, suggest that there is a view of 
this electoral question not presented to the commis- 
sion, nor considered by them, which perhaps the 
patient and courteous reader, who has accompanied 
this examination from the beginning, will not be re- 
luctant to hear — seeing that this book, in conception 
and development, is but a rebellion against the empire 
of settled ideas, indeed, is a secession from an old state, 
and the foundation of a new centre of authority. 

A written constitution, the fundamental law of a 
Republic, may act proprio vigore, of its own force, and 
such must be its construction, where it was the pur- 
pose of its framers so to form it. That it was so made 
in the part of the constitution of the United States 
involved in the question submitted to the commission 
by the Electoral Act, is averred to be a fact proved 
at once by the texture of the constitution, and by its 
history. In consequence, the Acts of Congress re- 
quiring the certificate of the governor, and Acts of 
the legislatures requiring certificates of returning 
officers, to the official appointment of presidential 
electors, are unconstitutional, so far as they offer bars 
or impediments to consulting the original records of 
the appointment of electors by the convention of the 
two Houses of Congress, or by its deputy the com- 
mission, or by any other competent counting authority. 
No lawyer will controvert the soundness of this pro- 
position. It is clear, on the face of the constitution, 
that its design was to allow no wall to be placed 
between the counting authority and the evidence of 
the appointment of its electors, ordained and preserved 
by a state. If the counting authority had any juris- 
diction to inquire into the legal character of one 
claiming to be an elector, before his vote is counted — 
which was denied by no one — it had the constitutional 



a form of Government. 2 8 1 

right to consult the record which contained the evi- 
dence of his appointment. No statute of Congress, 
nor statute of any state, could bar that primary right of 
examination necessary to the discharge of a public 
duty. It is a right inherent in the counting power 
and conferred with it, wherever that counting power 
may be decided to be. The constitution, in plain 
words, ordains that the electors, when in their college, 
shall sign, certify, and transmit sealed, and directed 
to the President of the Senate, the lists which con- 
tained the names of the persons voted for as president 
and vice-president. That is the only reference which 
the constitution makes to a certificate, and Congress, 
no more than with Holy Writ, can add to or subtract 
from the constitution. 

If a question arise as to the legal character of 
the persons who certify the lists to the President of 
the Senate, the counting authority, naturally, neces- 
sarily, and constitutionally, looks immediately to 
the evidence of the state's appointment, always a 
matter of record (because sovereign states, in civil 
matters of dignity and importance, act by record), 
and quickly and certainly decides the question. By 
its wording the constitution appears to have been 
framed under the belief that the legislatures would 
appoint the electors, as at first universally was done, 
and the universality of the mode amounts to a con- 
struction of the constitution by those who made it. 
When that mode of appointment was observed, if 
any dispute had arisen such as occurred between 
Tilden and Hayes, the President of the Senate, at first 
recognized as the counting authority, would have sent 
for the record of the Acts of the legislature, and would 
have decided the question according to the truth con- 
tained in them. If so reasonable a proposition be 
true, we have the mode of action set clearly before us 
which the constitution required. If no record had 
been made by a state of the appointment of electors, 



282 The Republic as 

and no other convenient, certain, and proper evidence 
were supplied, it might be that the electoral vote of 
such a state would be lost. A maxim of the common 
law w r ould apply to such a case — vigilantibns 11 on dor- 
mientibas leges subveniunt But forfeiture for laches, 
or accident, would be better than to be insulted and 
misrepresented by impostors foisted upon the State 
and the Union by an unprincipled political party and 
eight partisan judges. 

But herein, it may be asked by the reader, does the 
constitution d^zt proprio vigore, and is there any certain 
historical evidence that the fathers intended that it 
should so act in respect to this presidential question ? 
That no auxiliary or explanatory legislation was con- 
templated by this part of the constitution, to enable it 
perfectly to perform its function, and that it does act 
proprio vigore in this case, is conclusively established by 
the fact that it was not possible in 1789, when electoral 
votes were first counted, to have provided an auxiliary 
or explanatory statute. It was necessary then for this 
part of the constitution to be finished by its makers, and 
to be made so as to act proprio vigore, if it was to act 
at all. If a controversy, such as between Tilden and 
Hayes, had arisen in 1789, and it might have arisen 
then had there been more than one candidate for the 
presidency, the record of the State's appointment would 
have been sent for by a subpoena duces tecum, and it 
would have been examined in the presence of the two 
Houses of Congress, by the President of the Senate, 
and the decision made according to the fact as ascer- 
tained from the indisputable record. That was the 
contrivance which the constitution created for the 
transaction of that business. It was plain, direct, 
conclusive. In the case of Tilden and Hayes the 
controversy could have been determined by the re- 
cords if the certificates were swept away, or notwith- 
standing the certificates, as readily as any of Coke's 
questions: "Whether earl or no earl; baron or no 



a form of Government. 283 

no baron ; whether an alien be an alien friend, or an 
alien enemy ; or, whether a manor be held in ancient 
demesne or not." l The case of the first and second 
certificates from Florida supplied a case in which the 
record should have been consulted. On the face of 
the certificates, one case was as good as the other, and, 
if acting at that early period of constitutional life, the 
commission could not have objected, and founded its 
action on the ground of any irregularity ; in other 
words, there could have been no bar, no estoppel or 
hindrance, to be pleaded. A certificate from returning 
officers, or any corresponding authority, as a governor, 
is but a personal notification ; it is nothing more. In 
1789 that new court of conscience, the commission for 
doing justice according to the very right of the case, 
would have been compelled, even if supplied with the 
subtleties of the senator from Vermont, to confront 
the true issue and decide the cases upon the testimony 
of the election records of Florida and Louisiana. There 
would have been no door of escape. To every liberal 
understanding knowing the merits of the controversy, 
the judgment of the commission in both cases was evi- 
dently a foregone conclusion by a board of American 
politicians. 

It must not be forgotten that the eight commissioners 
who rendered that judgment were not men of flecked 
and spotted reputations, gotten from the camp followers 
and therefuseandrejected offalof the Republican party, 
but were its princes and leaders, who, on the score of 
personal character and honour, stood with the foremost 
public men in the Union. But they were members of 
the Republican party, and as such had formed a com- 
pact with an evil spirit ; they had mortgaged their souls 
to a power which stood at the side of them, before them, 
and at the back of them, and had fixed on each word 

1 Whether a manor be so held could only be determined by 
consulting the record of Doomsday Book, containing a survey 
of all the lands in England, ordered by the Conqueror. 



284 The Republic as 

and gesture its searching and jealous eyes. Before that 
grim and merciless authority, in whose service error 
becomes truth and vice becomes virtue, those wise 
senators and representatives and judges were slaves, 
bound by a colder and harder chain than was ever 
welded to the body of an African bondman. Who 
would enthrone in his fair country a tyrant who, in 
the pursuit of power, and the offices and gold that be- 
long to power, annuls all the obligations of truth ? Seek 
a government that raises, not one that depresses and 
destroys the standard of virtue and public morality, 
if we would have the country which we love, and which 
Almighty God has given us for a home — march at the 
head of civilization, and be a perpetual personage in 
history, not a buried state like Babylon the Great, 
that perished of its crimes and vices. 

With cruel sarcasm the Republican lawyers advo- 
cated respect for the certificates of the returning 
officers acting under State law, because of a tenderness 
for the rights of the states, and for that consideration 
and respect received the elegant and merited rebuke 
of Mr. Merrick, of the Washington bar, a great advo- 
cate before the commission, but, unhappily, now dead. 
It is by such devices impostors would steal the livery 
of heaven to serve the devil in. Mr. Merrick retorted 
in these words : " At first I was pleased to hear my 
learned brothers on the other side commend the doc- 
trine of State Rights with so much apparent zeal ; but 
soon I felt the want of sincerity and earnestness. As 
I listened to their disquisition, there was brought be- 
fore me the grandest and the saddest event in the 
history of the human race : They took him and clothed 
him in purple ; they placed an ensign of royalty upon 
his brow ; they put in his hand a reed for a sceptre, and, 
mocking, fell down and worshipped him." 

On the 3rd of March, 1879, a select committee * on 
alleged electoral frauds in the late presidential elec- 
tions " submitted their report to the House of Repre- 



a form of Government. 28 5 

scntatives of Congress. The chairman was Honourable 
Clarkson N. Potter, one of the greatest men of the 
Democratic party, and one of the greatest lawyers of 
the New York bar. The report contains a masterly 
examination of the cases of Louisiana and Florida, 
and an extract from it is presented. It justifies and 
fortifies the view which I have taken of the character 
and destiny of the American Republic, and, that the 
extract may receive the full weight which ought to 
attach to it from the distinguished character of Mr. 
Potter's committee-men, I transcribe their names on 
this page in the order in which they are attached to 
the report : Honourables William R. Morrison, Eppa 
Hunton, William S. Stenger, John A. McMahon, 
Joseph C. S. Blackburn, and William M. Springer. 

The committee say : " At the end of each four years 
the entire Federal patronage — amounting to 110,000 
offices — is collected in one lot, and the people divide 
themselves into two parties, struggling, in name, to 
choose a president, but, in fact, to control this enor- 
mous patronage, which the president when elected is 
compelled to distribute to his party, because he was 
elected so to distribute it. 

"The temptation to fraud, to usurpation, to corrup- 
tion, thus created, is beyond calculation. A prize so 
great, an influence so powerful, thus centralized, and 
put up for contest at short recurring periods, will 
jeopardize the peace and safety of any nation. 

M The election of a president would never lead to 
the effort, and struggle, and bitterness with which it 
is now attended, nor be followed by any question as 
to who w r as the choice of the people, nor be the subject 
of any attempt to defeat their will, but for the offices 
within his gift. No nation can withstand a strife 
among its own people so general, so intense, so de- 
moralizing. No contrivance so effectual to embarrass 
government, to disturb the public peace, to destroy 
political honesty,and to endanger the common security 



286 The Republic as 

was ever before invented." That report was accepted 
by a Democratic House of Representatives, and is 
now a record of the government, to serve as a testi- 
mony to all ages and nations of how the Republic of 
the United States has developed as a form of govern- 
ment. 




CHAPTER XV. 

HE elevation of fraud, in the person of the 
Republican candidate to the office of 
President of the Federal nation, as the re- 
sult of the Electoral Commission, restored 
the certainty that civil war, to terminate 
with the stratocracy, as Washington predicted, would 
be the grave of American liberty. The attempt to 
make justice and law decide the controversies of 
political parties in the United States suffered a total 
and final overthrow from the partisan determination 
of the Electoral Commission. The last presidential 
election, which seated Mr. Cleveland on the Democratic 
throne, when its inside is exposed to view, whilst all 
was tranquil on the outside, adds force to this conclu- 
sion, and points to the perilous edge on which the 
Republic stands at the close of each quadrennial term. 
So evenly were the forces of the two factions balanced, 
that the contest for the presidency was decided by a 
trifling majority in the state of New York — proving, 
as the great poet had said, the 

" Equality of two domestic powers 
Breeds scrupulous faction." l 

When the doubtful result of the election in New 
1 " Antony and Cleopatra." 



a form of Government. 287 

York was communicated to Mr. Blaine, the Republican 
candidate, remembering the fate of Tildcn, telegraphed 
to the Republican leaders there — " Claim everything." 
But the catastrophe of civil war was averted by the 
seasonable exhibition of force on the theatre where 
the politicians were preparing to re-enact Florida and 
Louisiana. Tammany society, in the city of New 
York, brought its mob battalions upon the stage. 
Tammany by no means was inclined to another pre- 
sidential commission. It did not intend, in Mr. 
Cleveland's case, to have a second edition of Tilden 
and Hayes. If the attempt with a fraudulent count 
were made, Tammany w r as resolved to strike a first blow 
in the civil war ; and, moreover, that it should fall on 
the heads of the Republican managers in their marble 
palaces, the contrivers and hatchers of the plot. The 
following letter, addressed to the author by a distin- 
guished Democratic leader, discloses the situation at 
that critical time : 

" The fraud of 1876 created a wholesome fear in 
the minds of all lovers of Republican institutions, and 
excited the energies of the Democratic party to resist 
any attempt to repeat it. That an effort in that 
direction was contemplated in the fall of 1884, there 
is good reason to believe. The election turned upon 
the vote of the great state of New York, and those 
best informed knew in advance that it would be close. 
Steps were taken to insure an honest count of the 
vote as it was cast. In an aggregate vote of nearly 
one million six hundred thousand, the majority for 
Mr. Cleveland was only about eleven hundred. The 
Republicans thought they had now an opportunity 
again to reverse the will of the people and perpetuate 
their power. Day after day passed, and still the 
country was kept in suspense as to the result. It 
was bruited that the ballots were being manipulated, 
and the city of New York was roused as it had not 
been since 1861. Immense masses of men paraded 



288 The Republic as 

the streets, shouting the names of those suspected of 
being concerned in the plot to cheat them out of the 
fruits of victory, and for a time the greatest apprehen- 
sion prevailed. But the independent press of that 
city had so carefully collated all the facts and figures 
bearing upon the result, and demonstrated so clearly 
Mr. Cleveland's election, that finally the Republican 
committee abandoned the contest. The truth is, the 
mob had infused terror into the hearts of the property 
holders, and the wealth of a great city demanded that 
the conspirators should no longer imperil its safety." 

I cannot consent to reopen this volume that I may 
discuss " trusts," that further development which the 
protective system has received in the United States, 
by which a combination of the class of domestic pro- 
ducers is enabled to establish a monopoly in the 
domestic market, dictating prices to the consumer ; 
nor further to develop, since the recent quadrennial 
struggle, the mercenary character of the American 
popular mode of government, the most accessible, as 
every observer sees, of all the systems to the corrupt 
influence of money, making the Republic the govern- 
ment of the capitalist, not the government of the 
people, which it professes to be. But, on account of 
their eminent positions, I will cite here the testimony 
on this point of His Excellency Fitzhugh Lee, Go- 
vernor of the State of Virginia, and of His Excellency 
E. M. Wilson, Governor of the State of West Virginia. 
In reply to an interviewer on the results of the recent 
presidential election, Governor Lee said : " In my 
opinion the Republic is controlled by the coin bags 
of Morton, Carnegie, and other Republican money 
kings, and it is no longer a people's government, as 
contemplated by its founders." 

In his message to the legislature of West Virginia, 
session 1889, Governor Wilson said, in allusion to the 
corrupt practices in the recent presidential election : 

" Whether armed legions be bought with a price to 



a form of Government. 289 

strike down existing institutions, or the ballot in the 
hands of a free people be polluted by the bribe-giver 
and the bribe-taker, the result, in the end, must be one 
and the same. 

M The corruption of the ballot must bring with it a 
loss of public confidence ; and the loss of that con- 
fidence can but pave and make straight the way for 
the destruction of existing forms. 

" Upon the ballot rests the entire superstructure of 
our political fabric ; and its corruption is more dan- 
gerous than open revolt, for it undermines the very 
foundations with insidious debauchery. And yet this 
is a peril to which our whole country is this day ex- 
posed. Under the sham of campaign expenses vast 
sums of money are raised and distributed to corrupt 
the voter and defeat the public will. In many in- 
stances men are selected for exalted public positions 
whose only qualifications are enormous wealth and a 
ready willingness to provide money to tempt the 
indigent and defile the ballot-box. 

"Throughout the country, for months last past, the 
very atmosphere has been laden with the cry of fraud. 
Reproach has been cast upon our own state as never 
before by illegal, fraudulent, and corrupt voting in 
almost every county within its borders. This is so 
palpable, that 4 he who runs may read/ The capita- 
tions of 1884 were 133,522, and the entire vote, after 
the most active political campaign ever made in the 
state, 137,587. The capitations for 1888 were 147,408, 
and the entire vote 159,440. The difference in the 
capitations and the vote, in 1884, was 4,065 ; in 1888, 
it is 12,032. This shows an increase of votes in four 
years of 21,853, which, if legitimate, would indicate a 
population of 900,000, and an increase in four years 
of much more than 100,000. It is certain that no such 
increase has taken place." 



U 




290 The Republic as 



CHAPTER XVI. 

THE POLITICAL ADVENTURER. 

HE reason why states of the popular frame 
do not, permanently, afford good govern- 
ment, but, finally, fall victim to misrule, 
anarchy, and army government, is, that 
they are controlled and run by the political 
adventurer — the man in search of fortune, and indi- 
vidual advantage, by the road of politics. Among so 
great a number of persons who offer their services to 
a Republic there must be many honourable excep- 
tions, but they stand as exceptions, and do not affect 
the rule. Office is the absorbing pursuit of the poli- 
tician class, and the office is valued for the emoluments 
connected with it. Some aspirants are actuated by 
the love of fame, some by the love of pleasure ; but the 
mass of them are swayed by the grossest motives of 
interest — the love of the " almighty dollar." In their 
party, therefore, these eager expectants see reflected 
themselves, their country, and their god. Thoughts 
of wise men survive decay. Temples crumble, and 
empires pass away, but thought triumphant lives for 
all time. Bacon, the great heir of fame, describes 
the adventurer politician of the United States, although, 
when the " Advancement of Learning" was written, 
that country was as remote from the system of Europe 
as his New Atlantis : " The corrupter sort of mere poli- 
ticians do refer all things to themselves, and thrust 
themselves into the centre of the world, as if all lines 
should meet in them and their fortunes ; never caring, 
in all tempests, what becomes of the ship of State, so 
that they may save themselves in the cockboat of their 
own fortunes." 

Theodore Parker was one of the lights of Boston. 



i 



a form of Government* 291 

He said the Democratic party of his day " was com- 
posed of young men who had their fortunes to make." 
He ought to have applied his keen remark to all 
political parties in the Republic of the United States, 
from the patriots who gathered around Washington's 
footstool, to the philanthropists who raised the slogan 
of abolition and made Abraham Lincoln their leader. 
All such combinations are held together by the cohe- 
sive power of public plunder — a sage apothegm of 
Calhoun. Without a politician class to be enrichened 
and honoured by controlling government, popular 
states would not be created. That they are called 
iato existence for liberty, or for any other purpose, is 
a false pretence of the politicians. The good of the 
nation is the last object they are concerned about, 
and the vices of the parent destroy the offspring he 
has engendered. The stronger prevails over the weaker 
interest, partial laws bring oppression, until war be- 
comes preferable to peace. The Republic, as a rule, 
does not place its greatest men in the lead. A man 
like Webster or Calhoun is reserved for the secondary 
place, or to adorn a private station. Governments which 
do not act so as to place the highest ability and the 
greatest virtue in the public service must eventually 
succumb in the preference of mankind to such as do. 
The advancement, preservation, and government of 
society is a task so difficult, and so intricate in its 
details, as to require the best talent that any nation 
can produce, not a race of gambling politicians whose 
motto is : " To the victors belong the spoils." 

But what force is it in Republican politics, what 
inexorable law, which surely delivers the government 
into the hands of the adventurer in politics ? Why, on 
that theatre, as in other spheres of action, does not 
merit always win ? The question is pertinent, and 
penetrates to the heart of our subject. Success is the 
object of the party formation, for without it the pro- 
posed objects cannot be attained. It was the motive 



292 The Republic as 

which banded the organization, and, logically, subor- 
dinates all other considerations. " Why go into thefight 
to be beaten ? " the politician acutely inquires. Disci- 
pline and subordination are as necessary in that civic 
army as in the military service ; on no other terms can 
victory be purchased. The reorganization of the Con- 
servative party of Virginia, after its overthrow by the 
Readjuster party, establishes this truth, whilst it clearly 
points to that other truth, that the responsibility of 
the representative to the voter, except nominally, does 
not exist. His responsibility is to his party. To 
regain the government of the commonwealth the Con- 
servatives found it necessary to introduce a discipline 
in their ranks which reminded an old soldier of the 
army, and to direct and control this reorganized corps 
of voters the party authority selected their ablest man. 1 
No murmur of disapprobation was heard from that 
host of intelligent Virginians. Indeed they were con- 
tending for a great stake: to regain the control of 
their government, and prevent the Africanization and 
plunder of society. That was an immense prize for a 
political party to struggle for, and presents to the 
view a distinct and dangerous phase of Republican 
politics, for in every nation the mob is numerous and 
vicious enough, if it obtain power, to destroy it. In 
Republics alone do the laws render such a calamity 
to the State possible. To the leaders who organize 
and conduct the canvass, victory is of infinitely greater 
importance than the establishment of any policy, or 
the vindication of any truth. When the chase is over 
and the result of the hunt is distributed, the noblest 
prey falls to the lion, whilst the jackal gets the small 
game or devours the offal. 

When we accept the proposition, that under the 
Republic government is administered by a victorious 
faction, the rest is consequence. As the interest 

1 Hon. John S. Barbour, now a senator of the United States. 



a form of Government. 293 

deepens, when the Old Guard is ordered to the front, 
principles are denied or abjured, and victory is solicited 
on any terms. When the white-caps run, and the 
ship labours in the surf, the cargo itself is thrown 
overboard. At this hour a change, or we will call it 
a modification, is taking place in the professed princi- 
ples of the national Democratic party which very 
strikingly illustrates the truth of that proposition. 
Free trade, as we have learned, from the beginning of 
the constitutional life, was a fundamental principle in 
that camp of politicians. It dates from the time when 
Jefferson collected the defeated Anti-Federalists, and 
constructed out of that material a new body. But 
the power of that gigantic organization is threatened 
with a decline. Protection has occupied the once 
Democratic West, and the fowler is spreading his nets 
in the Democratic South. First one stronghold sur- 
renders, then another, until Richmond, the centre of 
the defences, hoists the protection flag. It has be- 
come evident to acute observers, such high priests as 
inspect the entrails of the times, that the Democratic 
party, notwithstanding its Herculean strength, cannot 
carry so great a weight of principle, and is compelled 
to " unload," if I may borrow a very expressive word 
from the vocabulary of the late President Grant, but 
applied by him to the Republican party. When next 
an ecumenical council is convened, the dogma of free 
trade probably will be dropped from the party creed, 
or an indulgence with respect to it will be published. 
When the traditional boundary line is erased, and the 
moss-covered corner-stones are removed, no distinc- 
tion will remain to the parties but their names and 
their war cries, with the difference between M the ins " 
and 4< the outs," which no compromise can adjust, 
no time obliterate. Calhoun, the wizard statesman, 
warned his countrymen long ago that American poli- 
tics were fast drifting to that conclusion. The Demo- 
cratic and Republican parties will become as the 



294 The Republic as 

factions of the circus, distinguished only by their 
colours, and, like them, will fill country and town with 
discord and strife. 

Whether it be cause or consequence, it is not material 
to determine, there is another force which operates to 
advance the adventurer to the front place in American 
politics. I refer to the increasing reluctance among 
men of substance and business to partake of the manage- 
ment of the parties to which they are attached. If one 
of them, whatever his merit or intelligence, unless he 
becomes a professional politician, attempts it, he pain- 
fully discovers that he is but a cipher in the throng, 
and has become moulded in a rigid system, con- 
trolled by its own politic maxims, which he cannot 
alter nor break from without injury to the party he 
would serve. The dream of usefulness dissolves, 
activity subsides, the romantic endeavour is relin- 
quished, the man with the purged vision returns to 
his proper pursuits, and the party is left to the ex- 
clusive management of the expert hands in which he 
found it. Quiescent and obedient he moves along 
henceforth in the drove of voters, realizing that there 
is no dominion so absolute as that which a political 
party in American exercises over its members. Daniel 
Webster discovered aclass amonghis Northern country- 
men whose influence he thought ought to be felt in elec- 
tions, but who kept aloof in the background, avoiding 
the vulgar contact and the dust of the arena. He 
delivered, in New York city, one of his memorable 
speeches, in which he warned that superior element 
that their supineness tended to deliver the government 
of society into the hands of the rabble, guided by 
the professional politician ; but his exhortations pro- 
duced no greater effect than the ill-bodings of 
Cassandra. Perhaps the statesman from Massachu- 
setts did not reflect that the class he would advise 
were obeying a far stronger law than the lessons of 
any sage or the eloquence of any orator. What law ? 



a form of Government. 295 

One so imperative that the mind of man quickly dis- 
cerns and promptly obeys it : that the successful 
conduct of any business requires an undivided atten- 
tion. The Lord Chief Justice Coke announces to the 
law student the condition indispensable to success in 
his profession : "My lady the law must lie alone," and 
with all its force the aphorism applies to every other 
pursuit in life. 

An American newspaper contains the advice of a 
planter of Virginia, honourably known to the nation 
as the President of the Congress of Farmers, addressed 
to the agricultural class. The counsel which emanated 
from that distinguished source is digested into four 
articles, the observance of which is deemed by him to 
be necessary to successful farming and planting. Under 
the fourth head the planter writes : " Let politics alone, 
except state policy as it may affect agriculture and 
the material interests of the state. I will not write on 
the subject except to say, that when an agricultural 
community becomes deeply interested in politics, 
agriculture is forgotten, and the court-house and 
cross-roads are resorted to to discuss political sub- 
jects." ' Surely we have here an important truth 
developed, by popular self-government in America, to 
which every European State ought to attend before 
she plunges into a morass from which extrication is 
impossible. In the Northern and Western sections of 
the Union the great body of business men, in obedi- 
ence to some general law, practice an abstention from 
politics to which the planters and farmers of the South 
are advised by one of their soundest thinkers. This 
potential force is incessantly at work in every neigh- 
bourhood, in every district, in every county, in every 
city, in every state of the vast American Republic, 
and, as by the power of an immutable decree, sur- 
renders the government into the hands of political 

1 Colonel Robert Beverly of Fauquier county. 



296 The Republic as 

gamblers and adventurers. The law of the division of 
labour, which, in mechanical industry, Adam Smith 
announces as the great principle which leads to 
success and progress, applies with all its power to 
other occupations. In compliance with this mandate, 
as from a superior authority, politics have become a' 
profession in the United States — a " trade," as some 
contemptuously call it, and the trading politician is a 
stamped and recognized character. These results 
could not be obtained from theory, the ignis fatuus 
which danced before the Jeffersons and the Hamiltons, 
but only from experiment, man's wise and trusty 
schoolmaster in government as in the sciences — the 
affable archangel who still teaches Adam. 




CHAPTER XVII. 

THE ENTAIL AND THE ENTAIL-LEASE.— M. DE 
TOCQUEVILLE. — TH£ END. 

T is not irrelevant to an examination of the 
American Republic to consider a force, 
not perhaps a part of government, but 
near to it, and which actively co-operates 
with the causes which determine its sta- 
bility. As soon as a revolutionary party, under the 
guidance of local ambition and a despotic monarchy, 
had resolved to try again the exploded experiment of 
a Republic, the first subject which should have en- 
gaged the attention of a philosophic statesman was 
the agency by which the social elements might be 
fixed. In that order the earth had been prepared for 
the occupancy of the inferior animals and man. The 
sea, as a connecting link between the islands and con- 
tinents, was left a liquid mass, but the land was made 



a form of Government. 29 7 

firm. The entail, and the entail-lease, into which that 
tenure naturally branches, enables, through a long 
series of centuries, one generation to hand over to 
another the body politic with its unity, coherence, 
consistency, and stability preserved. By that means 
the proprietary and renter classes, united in the bonds 
of association and interest, those strongest ligaments, 
become the body of the State, and the depositary of 
its traditions, its national character, and its opinions. 
Washington Irving, at once the admirer and delineator 
of English rural life, thus speaks of the effect of such a 
division of the soil : " The manner in which property has 
been distributed into small estates and farms has estab- 
lished a regular gradation, from the noblemen, through 
the classes of gentry, small landed proprietors, and sub- 
stantial farmers, down to the labouring peasantry; 
and whilst it has thus banded the extremes of society 
together, has infused into each intermediate rank a 
spirit of independence." In America, operating as a 
repellent force, it would have preserved the purity of 
the Saxon race in their new homes against the assaults 
of the moving hordes of emigration. Jefferson was 
a Nihilist of the philosophic type. He abolished the 
entail law, or, at least, it was done upon his motion 
and by his influence, as soon as Virginia had ceased to 
be a royal colony, and in turn he attacked every other 
stronghold of Conservatism. The state became under 
his inspiration tabula rasa, and the Virginians, who 
should have populated a great empire of their own, 
became as widely dispersed as the Jews. The aboli- 
tion of the entail was a dispensation of instability. 
The people drifted from their homes to be succeeded 
by strangers unconnected with the past, or with each 
other, by a single tie. Wave of population succeeds 
wave, until society becomes less stable than a band of 
nomades. 

Veneration for ancestors, traditions, and local at- 
tachments, are the ties and holdings of a community, 



2 98 The Repitblic as 

and these are destroyed by an excessive mobility. 
The family, whether humble or exalted, is the unit 
and base of society. Wise legislators are careful to 
strengthen and to guard it, but Jefferson, a man of 
theory of the French school, annihilates it at a blow. 
There is a consequence derived from the long resi- 
dence of a people in their homes which is a valuable 
aid to government. An opinion arises, it forces itself 
into consideration, and finally establishes its dominion, 
and on conduct is a curb more persuasive and stronger 
than prescribed law. The innumerable social relations 
which arise from a tenure of this kind branch in all 
directions, and run and twist into every fibre of the 
national body, imparting to it a solidity and weight 
to be obtained in no other way. Reasoners extol the 
English constitution, reposing on English society, for 
its unparalleled stability ; we must remember that it 
is obtained from the feud maintained in the king- 
dom since the polite Norman wrested the government 
from the ruder Saxon, and established it as the 
grundsel of the conquerors' civilization. A distin- 
guished American author has said of that govern- 
ment : " There must be something solid in the basis, 
admirable in the materials, and stable in the structure 
of an edifice that so long has towered unshaken amidst 
the tempests of the world." It is the foundation- 
stone of the feud which has produced this admirable 
result, and when it is destroyed by the hand of un- 
reasoning innovation, a revolution beginning at the 
root or base of society will have begun in Great Britain 
which will not run its course until an army govern- 
ment is established as a substitute for the present 
system of the empire. It is a consequence which 
cannot be avoided when the feud is displaced. We 
may throw down even the Pyramids by disturbing 
their venerable foundations. 

The democratic government of France, which has 
intruded where the splendid throne of Bonaparte 



a form of Government. 299 

stood, is prefigured in the pages of Alexis de Tocque- 
ville, the evil germ having been wafted over the sea in 
the loose notes and memoranda of that author. Thus 
it is that by a mysterious law of retaliation America 
has twice overturned the French monarchy. Whilst 
he was in America the Frenchman was a diffident 
student of democracy, catching at every man's opinion 
and writing it down in a book. He crosses the ocean, 
when the scholar is transformed into the master, and 
he teaches democracy with the authority of an Aris- 
totle. He gazed at the exterior of the American 
temple, but did not enter its penetralia. Thus he 
describes only the visible apparatus by which the 
Americans have applied the democratic principle to 
government, but of its interior organism, if any, by 
which the majority power was to be controlled, or 
moderated, he learned nothing, and teaches nothing. 
According to the political instruction which his book 
offers to France and to Europe, it calls for no more art or 
wisdom to construct a popular system of government, 
complicated with Federalism and Sectionalism, or any 
other overbearing force, than to organize and conduct 
a township meeting. The tourist did not at all un- 
derstand the problem before him, and France could 
not have sent to the Federal Republic an observer 
who, after a two years' residence, could have written 
so little that was valuable on its system of govern- 
ment. De Tocqueville possessed a cultivated style 
and a lively imagination ; he was an audacious, per- 
haps a plausible theorist, and with these advantages 
wrote an agreeable book. His pages abound in state- 
ments of facts misrepresented, or misunderstood, to 
support false theories and rash conclusions, which 
Benton exposes with a merciless criticism. 

The philosopher, for he affected to be a philosopher, 
did not inquire if the gigantic democratic power, 
which he professed to understand and presumed to ex- 
plain, worked with an equal stroke between the sections, 



300 The Republic as 

which he saw divided the Union into two antagonistic 
parts, distributing fairly the advantages and burdens 
of the system between them ; or whether, under a 
pretence of democratic liberty and equality, one had 
not become, under the mask of a constitution, com- 
mercially and politically the thrall of the other. 
Monsieur Alexis de Toqueville did not embark in 
that dull and laborious inquiry. He was an artist 
rather in search of striking pictures and pleasing 
contrasts, with which to entertain Europe — not a 
laborious searcher after truth, gathering useful facts 
and conclusions to offer^to the Old World about a new 
democratic civilization which had grown up in the 
woods and prairies beyond the Western Ocean. He 
saw the fresh and brilliant civilization of North 
section — its universities and schools, its cities, palaces, 
and fertile fields, its multiplied interior connections, 
bringing to the seaboard a trade which covered the 
sea with argosies, but did not stop to inquire whether 
it was the result of capital and labour fairly applied 
by the Anglo-American in a new world, or was the 
earning wrung from an impoverished tributary. This 
inquiry would have been instituted by an acute and 
•searching observer, and, until answered, how could he, 
with an honest countenance, stand up before Europe, 
and, as eye-witness and ear-witness, declare that de- 
mocratic institutions in America were working pros- 
perously, and offered a model to every nation of 
Europe. 

By word of mouth, and by his commentaries, he 
had been instructed by Chancellor Kent as to the 
active powers of the Federation, but he received from 
his preceptor, or his book, no information touching 
negative powers, forces lying in repose, which ought 
to have been found somewhere to protect the minority, 
with its vital interests, from oppression by the ma- 
jority, and without which a Democratic Constitutional 
Republic is a despotism of the worst class. Had his 



a form of Government. 30 1 

investigation taken that turn, had he chosen Calhoun, 
at that time flooding the Union with the light of his 
glorious genius, instead of a New York lawyer, to 
introduce him to the sage doctrine of democratic 
government, his own reflections, notwithstanding a 
partial bias in his instructor, must have forced him to 
the conclusion that the policy which he had crossed 
the ocean to understand and report was, as a consti- 
tutional experiment, a dead failure. Forty years ago 
M. de Tocqueville would have published to listening 
Europe the truth so imperfectly inculcated in this 
book — that constitutional government of the repub- 
lican type is but a philosophic dream. Instead, he 
has sown broadcast over Europe dragons' teeth which 
may chance to spring up armed men. Whether better 
success has attended constitutional government where 
it has contracted monarchical and aristocratic con- 
nections, or whether, where that has been done, it is 
not but a modification of the democratic ascendency, 
as in the British Isles under the influence of succes- 
sive reform bills, is an inquiry which does not fall 
within the scope of this examination. In the fullness 
of time the affable archangel will reveal that truth to 
Adam. In every abode of civilization great interests 
are discovered, represented by minorities, which go- 
vernment is much concerned to plant and to cherish, 
and no nation, unless smitten by God's frown, would 
accept a political organization which enables the sel- 
fish strong to devour the weak, and which finally 
launches society on a roaring sea of military factions. 
If, then, the Republic is a terror to be shunned, not a 
Paradise to be sought, what forces, what agencies can 
a people employ with which to protect themselves 
from so formidable a danger ? How shall they 
quarantine against so fell a disease ? There is but 
one agency by which the work of protection can be 
effectually afforded. The people, the nation, must 
come to the front, and in their own persons encounter 



3<D2 The Republic as a form of Government, 

the adversary. Notwithstanding its illusions, and 
baits, they must learn to know the true character of 
the Republic, and then actively follow the advice 
given a hundred years ago by Edmund Burke to the 
British people, when they were beleaguered by the 
charms of the Gallic sorceress : " Republican spirit 
can only be combatted by a spirt of the same nature : 
of the same nature, but informed with another prin- 
ciple, and pointing to another end." 



THE END. 



APPENDIX. 




NOTE BY THE AUTHOR. 

HE claim of a Federal court jurisdiction 
over state officers obeying a state law, 
asserted conspicuously in the adjudicated 
cases of Osborne against the Bank, 9th 
"Wheaton's United States Reports,"p. 738, 
and afterwards in Poindexter against Greenhow, 114 
" United States Reports," p. 288, has not been aban- 
doned by the Supreme Court, but is reasserted in the 
court's opinion in the Habeas Corpus cases decided at 
its October term, 1 887. The opinion says : " The legisla- 
tion under which the defendant justified being declared 
null and void as contrary to the constitution of the 
United States, therefore left him defenceless, subject 
to answer for the consequences of his personal act in 
the seizure and detention of the plaintiff's property, 
and responsible for the damages occasioned thereby." 
The state of Virginia also, whose sovereignty, in com- 
mon with that of every other state of the Union, has 
been invaded by that doctrine, has not retreated from 
her position in that memorable contest, as " the testi- 
monial" shows, voted by her legislature approbatory 
of the conduct of her officers in the Habeas Corpus 
cases. As the contest is not over, I reproduce in this 
annex my answer to the rule in the Federal Circuit 
Court, that the public and the gentlemen of the legal 
profession may have placed before them in a con- 



304 Appendix. 

venient form the grounds upon which I questioned 
the legality of Judge Bond's action. I append two 
other papers connected with the subject, but not official 
in their character. 



ANSWER OF JOHN SCOTT, OF FAUQUIER, 

TO JUDGE BOND'S RULE TO 

SHOW CAUSE. 

Filed September 22nd, 1887. 

Honourable Hugh L. Bond, Judge of the Circuit 
Court of the United States for the Eastern District of 
Virginia, at the Court-house in Richmond : 

May it please your Honour : In compliance with a 
rule issued by your Honour against me to show cause 
before your Honour, at the court-house in Richmond, 
on the 22nd day of September, 1887, at eleven o'clock 
a.m. of that day, why I should not be attached for 
contempt in disregarding a certain restraining order 
of your Honour, made in the cause of Jas. P. Cooper, 
H. R. Beeton, F. J. Burt, et als. v. Morton Marye, 
auditor, &c, R. A. Ayers, attorney-general, &c, et als., 
on the 6th day of June, 1887, I appear now in your 
Honour's court, and submit this paper, which contains 
my answer to the said rule. 

Your Honour's restraining order forbade me, as 
commonwealth's attorney for the county of Fauquier, 
to discharge certain duties imposed upon me, as one 
of the commonwealth's attornies of the state of Vir- 
ginia, by a statute of the legislature approved by the 
governor, May 12th, 1887, which in its 14th section 
provides, in case of disobedience by any officer to it, a 
pecuniary penalty not less in amount than $100, nor 
greater than $500. 



Appendix. 305 

As your Honour well knows, it is a principle recog- 
nized by publicists of all civilized countries, as the 
foundation of political life, that a citizen or subject 
doing an act enjoined upon him by the state is covered 
by the panoply of the state, and is exempt from every 
degree of personal responsibility except to his own 
sovereign. 

As a state can act only through the agency of indi- 
viduals, this immunity is necessary to enable it to 
preserve itself and perform its other high functions. 

An example of the application of this public law 
occurs in the history of the United States in the case 
of the state of New York against McCloud, a British 
subject, who was released from prison by the direction 
of Mr. Webster, secretary of state, ordering a nolle 
prosequi addressed to the attorney-general of the state 
of New York. It was a command of the political 
power addressed to the judicial power, and was based 
on the fact that McCloud's action had been adopted 
by the British government as one performed by its 
authority. (" Webster's Works.") 

The principle of exemption referred to applies with 
all its force to the states of the American Union and 
to their agents, for these states are admitted to be 
bodies politic in the highest and completest sense of 
the words. (Poindexter v. Greenhow, 114 " United 
States Reports," p. 288.) 

But it is made a condition by that decision, to en- 
able a defendant to avail himself of the exemption, 
that " It is necessary for him to produce a law of the 
state which constitutes his commission as its agent, 
and the warrant for his act." (lb.) 

With this condition I comply now by directing your 
Honour's attention to the law of Virginia, before re- 
ferred to, and to the third section, which is in these 
words : " The proceeding shall be by motion in the 
name of the commonwealth, on ten days' notice, and 
shall be instituted and prosecuted by the attorney for 

x 



306 Appendix. 

the commonwealth of the county or corporation in 
which the proceeding is ; or, if it be instituted by 
direction of the auditor of public accounts, in the cir- 
cuit court of the city of Richmond." 

This Act of Assembly was passed obviously with 
the design to induce the holders of tax-receivable 
coupons to submit them for identification and verifica- 
tion, as required by the previous Act of January 14th, 
1882, the condition upon which the commonwealth 
allowed her treasurers to receive the coupons for 
taxes. 

This law has been examined by the Supreme Court 
of the United States in Antoni v. Greenhow, and it 
was decided by that final arbiter to be in accordance 
with the constitution. (107 "United States Reports," 
p. 770.) 

The statute to which I have referred in justification 
of my acts, being designed simply to render a pre- 
vious statute effectual, must be regarded as equally 
constitutional with it ; for the means are appropriate, 
and therefore ought to protect me from the censures 
of this court. 

But in a very high quarter it is contended that if 
the state law, which the agent or officer obeys, be 
subsequently held to be unconstitutional by the court 
trying the cause, it becomes a nullity, and does not 
protect the officer from penal consequences ; for only 
those laws — such is the doctrine — which are decided 
to be constitutional, can be regarded by a Federal 
court as mandates of the state ; an unconstitutional 
law, or such as a majority of the court may choose to 
say is unconstitutional, being but the unauthorized 
act of the individuals who compose the state govern- 
ment. 

Thus is a state separated from its government, with- 
out which it ceases to be a state. 

To enable the learned judges to reach this eccentric 
conclusion, it was found necessary to define a state to 



Appendix. 307 

be u an ideal person, intangible, invisible, immutable," 
and incapable of wrong or error. (Mr. Justice Mathews 
in Poindexter v. Greenhow, p. 291.) 

Thus, by the astuteness of a lawyer, a state is trans- 
formed into a mythical personage ; along such 
strange lines does the judicial imagination sportively 
wander ! 

From what source that definition of a state of the 
Union was obtained is not known to me ; but certainly 
it was not obtained from the constitution and laws of 
the United States, the only lexicon which this court 
will consult in a case which so deeply concerns the 
highest franchise of a sovereign state, the liberty of its 
citizens, and the obedience of its officers. 

May it please your Honour, a state of the American 
Union is not a myth, but is a living corporation. It 
is composed of a collection of individuals, inhabiting 
a defined geographical space, with a government and 
laws to organize and impart to them the charac- 
teristics of a body political, and which maintains 
constitutional relations with the government of the 
United States. 

Thus defined a state is tangible, visible, mutable, 
and is capable of doing wrong and committing error, 
as the secession of Virginia and the other reconstructed 
states of South section will doubtless prove to so loyal 
a citizen as Mr. Justice Mathews. 

The fourth section of Article 4 of the constitution 
provides that " the United States shall guarantee to 
even- state of the Union a Republican form of govern- 
ment." To convince your Honour that this guaranty 
has been complied with in the case of Virginia, I have 
but to refer to the readmission of that state into the 
Union after the close of the civil war with a constitution 
accepted as Republican by Congress. That was an act 
of the political power ; it binds all, and this court cannot 
controvert or annul it. 

Your Honour will take judicial notice that the Re- 



308 Appendix. 

publican constitution of Virginia, accepted by Congress 
and guaranteed by the United States, created a govern- 
ment of the people of Virginia, who are the state of 
Virginia, and that its government must be presumed 
by this court to be conducted in accordance with their 
wishes and by their commands. Its acts are their 
acts. They bind in contemplation of law as much as 
the acts of any deputy can bind his principal. This 
presumption of law, not the Supreme Court, in the 
plenitude of despotic power, seeking to subordinate 
the states to its absolute dicta, can break down or set 
at naught. Particularly is this true in this deplorable 
debt controversy, out of which this constitutional pro- 
blem has arisen — a flower grown from a fetid soil — so 
interesting to every intelligent mind in the United 
States. It is known that over it the state of Virginia, 
or, to speak with a stricter propriety, a majority of 
the political body, has passionately taken jurisdiction, 
moving its representatives as puppets and dictating 
legislation in relation to it. 

If this reasoning be correct, I conclude that, whether 
the Act of May 12 be considered constitutional or un- 
constitutional, it is equally the act of the state of 
Virginia, and that I, its commanded agent and officer, 
am not in contempt because, when placed in the 
dilemma of contrary orders, I have yielded obedience 
to my natural sovereign whose bread I eat and whose 
laws I have sworn to obey whenever I act as common- 
wealth's attorney. This, then 5 may be received as an 
established theorem : The unconstitutionality of a 
statute in cases like this does not render it less the act 
of the state ; nor less effective in protecting the agent 
who obeys it from legal responsibility to any other 
authority. 

The state which directs my official conduct is, by 
the law of the civilized world, accountable for it, and 
to the state of Virginia I refer your Honour as the 
responsible party in this case. 



Appendix. 309 

Arraign Virginia before your judgment seat ; visit 
your penalties on her head — not on me, her agent and 
subaltern. 

But another deduetion may be drawn from this 
reasoning which it is well not to overlook in this 
place. 

If it be true, as a constitutional proposition, that all 
the acts of a Republican government are assumed to 
be the acts of the state, and that this ruling of the 
Supreme Court is, indeed, a blow struck at the sove- 
reignty of the people of the states, it is a logical 
consequence that when a Federal court takes juris- 
diction of a state officer it thereby assumes jurisdiction 
of the state itself. 

To hold otherwise is to evade its eleventh amend- 
ment, and to treat the constitution with contempt, 
instead of with honour and obedience. 

A single consideration will set this truth very clearly 
before your Honour. 

If, by afflicting the agents or officers of Virginia 
with imprisonment and confiscation, the Supreme 
Court can succeed in forcing the treasurers to accept 
coupons without verification and upon simple tender, 
upon whom, I ask, does the consequence fall ? Not 
upon the treasurers ; not upon the commonwealth's 
attorneys. The consequence falls alone upon the 
state of Virginia, whose treasury, by this means, will 
have been bankrupted by unconstitutional action of 
the Supreme Court. The Supreme Court needs not 
to be informed that behind those treasurers and these 
commonwealth's attorneys the state of Virginia stands 
to be affected by all the decisions against them. 

Through all these mazes and crooked paths, Virginia 
is the party whom the Supreme Court is seeking to 
reach ; that state is the game they are hunting. 
Although the only party in interest, Virginia is not 
made a party to the record, because the eleventh 
amendment, which forbids a state to be sued in a 



3 1 o Appendix. 

Federal court by an individual, awkwardly stands in 
the way. No other reason can be assigned for the 
omission to stand her at the bar of the Supreme 
Court. Surely your Honour will allow that this court, 
because it is forbidden to entertain a suit against the 
state of Virginia, cannot therefore lay violent hands 
on me. A defect of power over the state is not a grant 
of power over the citizen. 

This defect of jurisdiction significantly suggests that 
when the states fashioned the constitution they did not 
design to confer upon the Federal court that jurisdic- 
tion, and it affords strong support to the opinion that 
when the constitution declares a state legislature shall 
not pass any law impairing the obligation of contracts, 
it did not mean to include contracts made by the state 
itself, which, as a body political, it had the election to 
perform or not according to the dictates of its morality. 

If, finally, it comes to be decided — for this great 
question is yet in a state of fluctuation — that a 
Federal court can constitutionally step between a 
state of the Union and its officers and agents, and 
absolve them from obedience to it, a most fatal blow 
will have been struck at the existence of the states of 
this Union. 

The clouds will have begun to gather, and prepara- 
tion made for those evil times which prognosticators 
foretell are ahead of this Republic. 

The states called this Union into existence, and 
from having been the massive pillars of a Federal 
system, they will have sunk down into the degraded 
vassals of the Supreme Court. 

Your Honour will be pleased to take notice that this 
Federal Union, designed and constructed by the fathers 
of the Republic for the habitation of a free people, may 
be destroyed as effectually by a consolidation of the 
states as by red-handed secession. When a stretch of 
judicial power is proposed which, if successful, must 
produce that result, surely, by this court, for that 






Appendix. 3 1 1 

>n, it ought to be condemned as unconstitutional ; 
but if your Honour shall reject my arguments as vain 
and illusory, and shall decide that I have acted in 
contempt of your Honour's authority, I am here to 
abide the consequences of your Honour's displeasure. 
All of which is respectfully submitted. 
John Scott, 
Commonwealth's Attorney for 

Fauquier County, Virginia. 
Richmond, September 22nd, 1887 



TO THE PEOPLE OF FAUQUIER COUNTY. 

Fellow-citizens : I have just been released from 
confinement in the city jail at Richmond, to which I 
had been condemned for an act of disobedience as 
commonwealth's attorney by His Honour, Hugh L. 
Bond, Judge of the Circuit Court of the United States 
for the Eastern District of Virginia. That all may 
understand, it is proper that I should explain to you 
the cause of so unprecedented an event in the history 
of Virginia, perhaps unprecedented in any of the 
United Stater. 

On the nth day of June, 1SS7, I was served with 
an order which issued from Judge Bond's Court, 
raining me from "bringing or commencing" a 
suit against any person who had tendered tax-receiv- 
able coupons in payment of taxes due the state. By 
an act of the legislature of Virginia of May 12, 1 
I was directed, in common with the other common- 
wealth's attorneys of the state and with the attorney- 
general, after a ten days' notice, to institute suits 
against the very parties whom Judge Bond's order 
commanded me not to sue. In case of a disobedience 



312 Appendix. 

to any of its provisions by an officer of the state, the 
statute further provided a pecuniary penalty not less 
in amount than one hundred nor greater than five 
hundred dollars. By these conflicting authorities I 
was placed in a position in which I was compelled to 
choose which I would obey. Trained in the school of 
Democratic States Right politics, which affords the 
only unerring clue to the meaning of the constitution, 
I did not hesitate, but immediately informed the 
deputy marshal, who served the process on me, that 
I would not obey the restraining order of Judge Bond. 
I acted in accordance with this determination, gave 
the required notices, and at the ensuing term of the 
Circuit Court of the county, recovered judgment in 
more than thirty cases against recusant tax-payers, 
who had offered to pay their dues to the state in 
unverified, perhaps spurious, coupons. After I had 
issued the notices required by the Act of May 12, but 
before the judgments were obtained, there was served 
upon me by the deputy marshal a rule commanding 
me to appear in Judge Bond's court at Richmond on 
the 22nd day of September, at 1 1 o'clock a.m., and 
show cause why I should not be attached for the 
alleged contempt of disobedience to his restraining 
order. In compliance with it I appeared and showed 
cause in a written answer which was published in one 
of your county papers, " The True Index," to which 
I respectfully ask leave to refer for the grounds of 
my justification. It is enough for me to say now, 
that it was evident to me, if so great a power as that 
claimed by this Federal judge was to be treated as 
conceded law, that the powers of self-government of 
the people of every state of the Union were virtually 
annulled, for it is clear that it is only through the 
obedience of state officers to state laws that the 
people of any state can exercise the franchise of self- 
government. I maintain now, as I did in Richmond, 
that the constitutional doctrine is, in respect to this 









Appendix. 3 1 3 

matter, that state officers are responsible only to 
state authority, not being in any degree responsible 
to Federal authority. In this great stride towards a 
consolidation of the states, I felt it to be my duty to 
meet the issue promptly and firmly, and so to act as 
to bring it, if possible, before the supreme judicial 
tribunal of the Union, where it could be adjudicated 
in the face of the nation, and from which, if the judg- 
ment were adverse, an appeal could be taken to the 
states in the form of an amendment to the constitu- 
tion, in order to curb excessive jurisdiction in Federal 
courts. The decision of His Honour Judge Bond 
was against me, and I was condemned to pay a fine 
of ten dollars with the costs, to dismiss all pending 
suits upon tax bills, and to enter satisfaction of every 
judgment that had been obtained. In default it was 
ordered that my person should be taken into custody 
and detained until a full compliance with the terms 
of the judgment. I refused obedience, and was con- 
fined in the city jail at Richmond, from which I 
applied for a writ of habeas corpus to the Supreme 
Court of the United States, which, if allowed, would 
bring the legality of Judge Bond's action before that 
court for revision. The writ was granted, and the 
object attained which I had desired from the begin- 
ning. After this case has been heard and determined 
you will all know, fellow-citizens, whether self-govern- 
ment can be forcibly taken from the people of a state 
by a Federal judge at the motion of a combination of 
foreign suitors. After I had reached Richmond I 
discovered that the honourable attorney-general of 
the state, Mr. Rufus A. Ayres, and the attorney for 
the commonwealth of the county of Loudoun, ex- 
judge J. B. McCabe, likewise bade defiance to the 
usurping order of the Federal court. Their cases, 
resting on the same principle, were heard with my 
case. With me those officers of the state of Virginia 
were sentenced to imprisonment, with me they were 



3 1 4 Appendix. 

confined in jail, and with me applied for and obtained 
writs of habeas corpus. United by a common cause 
we are now awaiting the decision of the Supreme 
Court upon our applications under those writs. Since 
it was organized never has that high court been called 
upon to determine a question of so great delicacy 
and importance — the establishment of the frontier in 
cases of this character between Federal power and 
the coterminous jurisdiction of the states. We will 
know then people of Fauquier ! whether the Supreme 
Court is the trusty guardian of the constitutional 
rights of the states, or stands ready to destroy them 
under the false pretence of construing the constitution 
— sapping your system of government by the insidious 
arts of the lawyer. 

Respectfully, 

John Scott, 

Commonwealth's Attorney. 



A CELEBRATED CASE. 

osborn against the bank — an interesting 
Discussion. Some Points Made by Mr. 
John Scott, of Fauquier County. 

To the Editor of the Richmond Dispatch. 

It will not be considered irrelevant, it is hoped, 
at this time and in this place, to invite attention 
somewhat particularly to one of the utterances of 
the Supreme Court, speaking through Mr. Justice 
Matthews, at its October term, 1887, in the Virginia 
Habeas Corpus cases, that silence may not be construed 
into acquiescence. Several points were decided in 
that case important to the people of Virginia to which 



Appendix. 3 1 5 

in the first place allusion may be made. The decision 
settles that the commonwealth has the power to order 
suits to be instituted and judgments recovered on the 
tax bills of such persons as tendered coupons, and 
that tax-receivable coupons cannot be forced into the 
treasury of the state until after they have been duly 
verified. That decision informed us, too, that Federal 
courts could not be converted by the creditors of the 
states into debt-collecting agencies, nor could they 
be used by London speculators, who had purchased 
coupons, to realize their expectations of gain. Not 
the least valuable feature of the adjudication was 
that part of it which determined that being a party 
to the record is not the only test that a suit is against 
a state, and so within the prohibition of the eleventh 
amendment of the constitution. That hard, narrow, and 
inflexible rule of construction with almost a full chorus 
of voices is repudiated by the Supreme Bench as receiv- 
ing no countenance from the constitution. But, in the 
slow progress of events, the correction did not come 
until after the decision had fulfilled its mission of evil 
and enabled the Federal government to force the 
United States Bank — an unconstitutional creation of 
Congress, as is now agreed and was then contended — 
on a protesting state of the Union having that large 
residuum of sovereignty now accorded by the Supreme 
Court to each state. A more enlightened canon of 
construction has been revealed to the judges and 
announced in the Habeas Corpus cases, although it is 
a subject of surprise and regret that they did not 
adhere to so sound a rule of interpretation in every 
part of their opinion. But they had gone wrong in a 
previous case and supposed it necessary to defend 
their infallibility. Such is an American court — nulla 
vestigia retrorsum. The new rule for construing the 
eleventh amendment is expressed by Mr. Justice 
Mathews in these excellent words, which deserve 
a place in every judge's memory: u To secure the 



3 1 6 Appendix. 

manifest purpose of the constitutional exemption 
guaranteed by the eleventh amendment requires that 
it should be interpreted, not literally and too narrowly, 
but fairly and with such breadth and largeness as 
effectually to accomplish the substance of its purpose. 
In this spirit it must be held to cover not only suits 
against a state by name, but those also against its 
officers, agents, and representatives, where the state, 
though not named as such, is nevertheless the only real 
party against which alone in fact the relief is asked, 
and against which the judgment or decree effectively 
operates." This language with precision indicates 
the proper road. Other judges will tread it, and it 
will become a recognized highway. The judges of 
the court, Mr. Justice Mathews foremost among them, 
have had the courage and strength to break a fetter 
of iron fastened on them by preceding courts, for which 
they merit the applause of the nation. It would have 
been fortunate for the states had the opinion prepared 
by the learned judge ended here. But it.not end here. 
A legal proposition is advanced containing an evil 
germ which in its development will produce great 
mischief unless eradicated from the judicial mind. 
"The legislation," continues the opinion, " under which 
the defendant justified being declared null and void, 
as contrary to the constitution of the United States, 
therefore left him defenceless, subject to answer for 
the consequences of his personal act in the seizure 
and detention of the plaintiff's property and respon- 
sible for the damages occasioned thereby." (Pamphlet 
edition of the case, p. 25.) 

This was intended to justify Poindexter against 
Greenhow, 114 " United States Reports," p. 288, like- 
wise a Virginia case, and which sets heavily upon the 
conscience of the learned judge who delivered the 
opinion in that case, as his purified vision informs us. 
That was a judgment against a local treasurer for dis- 
training the property of.a tax-payer who had tendered 



Appendix. 3 1 7 

coupons. The treasurer acted under the mandate of 
a statute which was vouched to justify the seizure, 
and was produced in court. Taken in connection 
with the facts of the case, the statute positively estab- 
lished the relation of principal and agent between Vir- 
ginia and Greenhow. As an artificial and legal per- 
person a state can proceed in no other way than 
through the medium of an agent ; and the suit insti- 
tuted against Greenhow was one brought against the 
state of Virginia, of which the court had no jurisdic- 
tion. The only question before the court was one of 
fact — Did the agency exist ? As to this point, no 
room was left for doubt by the circumstances of the 
case and the words of the law. Why, then, was not 
the suit dismissed ? The reason given is peculiar, and 
shows the manner in which those supreme beings 
argue when they mean to evade the constitution and 
make it their jest-book. They allege that the statute 
of the state, in their opinion, was unconstitutional. 
But that could not effect the fact of the agency, which 
had been proved, and upon which the constitution 
instantly operated. There is no way open for escape 
from the difficulty except roundly to assert again that 
a state can do no wrong, and that an unconstitutional 
statute is not its act. With his large knowledge and 
great ability Mr. Justice Mathews knows that there 
is no such fiction recognized by our law, and that the 
allegation is not true. The collection of persons who 
constitute a state are exposed to all the influences of 
error and passion, and are supplied with the means of 
giving them effect, and so are as peccable as any indi- 
vidual of the mass. Why does the Supreme Court 
of the United States found an important decision upon 
a fiction, not of law, but of fact, and shown to be a 
fiction by the most undeniable testimony ? Burke said 
a man becomes a worse reasoner by being made a 
prime minister. Had he lived in our day he would 
have applied his remark to a judge of the Supreme 



3 1 8 Appendix. 

Court. If a Federal judge has the right to order 
about state officers, there is an end of self-government 
by the people, whose franchise is exercised by the 
obedience of state officers to state laws. The states 
cannot afford to surrender this point. It destroys all 
subordination to authority in a state. The district 
judges, the circuit judges, and the Supreme Court 
judges will gallop their cavalry over the constitutions 
and laws of the states. There is but one mode of 
redress for this great evil, which is to limit the term 
of the judicial office. Irresponsibility is opposed to 
the genius of the Republic, and sows a harvest of 
dragons' teeth. 

These tricks of logic and feats of legerdemain are 
resorted to to enable the Supreme Court substantially 
to retain a jurisdiction which has been disallowed by 
the constitution. The eleventh amendment is couched 
in the following language : "The judicial power of the 
United States shall not be construed to extend to any 
suit in law or equity prosecuted against one of the 
United States by citizens of another state, or by citi- 
zens or subjects of a foreign state." 

But the citadel of this heresy is not Poindexter 
against Greenhow, but the older and more authoritative 
decision of Osborn and others, appellants, against the 
president, directors, and company of the Bank of the 
United States, respondents, reported in 9th Wheaton, 
738. It is not without hesitation that I venture to 
criticise that celebrated opinion ; but it must not be 
forgotten that error is vulnerable and may be chal- 
lenged by any adversary. Error is not encased in 
truth's divine armour. The principal facts of that 
case are as follows : By an Act of the Ohio Legislature 
a tax was imposed on each branch bank of the United 
States transacting business in that state. In accord- 
ance with this law and on the authority of Osborn the 
auditor, as provided in the statute, Harper entered 
the bank at Chillicothe and carried off coin and notes 



Appendix. 3 1 9 

sufficient to satisfy the tax and delivered them to 
Curry, the treasurer, who placed them to the credit of 
the state on the treasurer's books, but kept them in a 
trunk separate from other money in the treasury. The 

property taken from the bank afterwards came to the 
hands of Sullivan, Curry's successor in office, who 
receipted for it as treasurer, "not otherwise," as his 
answer states, but retained it in the trunk where it had 
been placed by Curry. On the 14th of September, 
1 8 19, a bill was exhibited in the Circuit Court of 
Ohio against Osborn and Harper, and a writ of in- 
junction was served on Harper whilst on his way to 
Columbus, and on Osborn before Harper reached 
Columbus. In September, 1S20, a supplemental and 
amended bill was filed, making Osborn, Harper, Curry, 
and Sullivan parties. On that bill the cause pro- 
ceeded to a final decree against the defendants, and 
was appealed to the Supreme Court, where it was 
heard at the February term, 1S24. The court treat 
as undeniable law, and base their reasoning upon it, 
that a principal in a trespass is jointly liable with the 
agent who commits it, and that it is error if he be not 
joined as party to the suit. The court say: "The 
fact is made out in the bill that Osborn employed 
Harper to do an illegal act, and that he is jointly 
liable for it is as well settled as any principle of law 
whatever'' (p. 837^. Putting the eleventh amend- 
ment out of view, the law as stated applied to Ohio 
and its agents, in that transaction, the court saying : 
11 The direct interest of the state in the suit brought is 
admitted, and had it been in the power of the bank to 
have made the state a party perhaps no decree could 
have been pronounced in the cause until the state was 
before the court. But it was not in the power of the 
bank to have made the state a party, and the very 
difficult question is to be decided whether in such a 
case the court may act on the agents employed by the 
state and on the property in their hands " 'pp. 846-7). 



320 Appendix. 

Whilst the constitution remained unaltered by the 
eleventh amendment, if it would have been incumbent 
on the bank to have united Ohio as a defendant in the 
suit, it is not clear that the simple incorporation of the 
amendment by the constitution would have the effect of 
throwing on the agents and subordinates of an excused 
and exonerated political power the responsibility for a 
trespass which it had designed and caused to be exe- 
cuted, and in which the agents implicated were in- 
voluntary actors. The states cannot accept this as 
the true meaning of the eleventh amendment, however 
agreeable and suitable it may appear to a bench of 
irresponsible judges. The sounder logic would appear 
to be that when the constitution of the Union, moved 
by weighty public considerations, excuses the state, 
the contriver and true executor of an illegal act, the 
amnesty is extended to the agents controlled by the 
state. It is a principle of universal justice never ques- 
tioned before, and is as applicable to civil as to 
criminal jurisprudence, that when a principal offender 
is pardoned or his offence condoned the guilt of the 
accessory is thereby extinguished. The shadow dis- 
appears with the destruction of the substance which 
cast it. When the obligor in a bond is released we 
do not hold the surety bound. The judges of the 
Supreme Court are not legislators, at least that is the 
design of the constitution, and they ought to confine 
themselves to a conscientious construction of the law. 
It is not within the scope of the Federal plan to have 
judge- made law. If the judges desire an extension of 
jurisdiction to round and finish their system of reme- 
dies let them obtain it by legitimate means, not get it 
by border raids on the states. They ought to know, 
and do know, that a refusal by the constitution of a 
court jurisdiction over a state is not a grant of it over 
the agents of a state as it appears to be thought. The 
clinging by the court to a jurisdiction forbidden by the 
constitution diminishes confidence in a tribunal which 






Appendix. 3 2 1 

must stand, as other courts do, on their rendered rea- 
sons. The sum of the matter is this : the judges of 
the United States have been expelled from a jurisdic- 
tion by the front door, and by false keys they have 
re-entered by the back door. 

It will afford an additional view of Osborn against 
the Bank, on which the learned brothers so greatly 
rely, if we step back in the life of the constitution 
to a period anterior to the birth of the eleventh 
amendment. The record then would exhibit the state 
of Ohio as a joint defendant with Osborn, Harper, 
Curry, and Sullivan. It is known to every reader that 
it is an acknowledged principle of the superior law of 
nations, which attaches to every domestic code and is 
administered with it whenever a case arises, that an 
accredited agent of a government is not personally re- 
sponsible for actions performed in a line of prescribed 
duty, but is covered by the aegis of its authority. 
This condition is indispensable, for without it govern- 
ments could not command the obedience of their 
subordinates, and it attaches as an incident of sove- 
reignty and Home Rule to every state of the American 
Union. Under the authority of this law, of uni- 
versal application wherever civilization has planted its 
banner, the bill against Osborn, Harper, Curry, and 
Sullivan should have been dismissed, but retained as 
to Ohio, as soon as the relation of the defendants was 
discovered by the court, for with hands on the state 
there could have been no failure of remedy, which is 
considered so important a matter by the Supreme 
Court. Yet a case may be remediless if the consti- 
tution has so ordered, and it may be the painful duty 
of the Supreme Court to say so. There can be no 
doubt of the authority of a court of the United States 
to administer the public law. It is so decided in this 
Ohio case. The appellants contended, when they 
disputed the jurisdiction of the Circuit Court, that 
their case did not arise under a law of the United 

Y 



322 Appendix. 

States, because several questions might be raised in it 
which depended on general principles of law, and not 
on an Act of Congress. But the court answered : "A 
cause may depend on several questions of fact or law. 
Some of them may depend on a construction of a law 
of the United States, others on principles unconnected 
with that law. . . . We think, then, that when a 
question to which the judicial power of the Union is 
extended by the constitution forms an ingredient in 
the original cause, it is in the power of Congress 
to give the Circuit Court jurisdiction of that cause, 
although other questions of fact or law may be involved 
in it." (Pages 820-23.) 

The eleventh amendment was intended to embrace 
the public law applicable to suits against states — to 
prohibit them when brought by individuals, and to 
affirm the immunity of their agents performing a 
prescribed duty. The immunity of the agent does 
not depend on a supposed legality of his acts, as Mr. 
Justice Matthews appears to suppose, but is obtained 
from the high source from which the command comes 
to him, and which he is not at liberty to disobey. 
The legal quality of the act does not enter into the 
question. Free agency by the law of reason is the 
source of responsibility : it ceases with compulsion, 
and a penalty inflicted by a state for non-obedience is 
compulsion. 

It would appear from a perusal of Osborn against 
the Bank, as reported, that the public law, which bore 
so directly and conclusively on the case, was passed 
over in silence, for the court say : " It is admitted that 
the defendants would be liable for the whole amount 
in an action at law ; but it is denied that they are 
liable in the court of equity." See also the argument 
of Mr. Clay of counsel for the bank : " The state is 
not a formal party on the record ; and that the state 
is not necessarily a party by reason of its incidental 
interest, is conceded by the admission that the bank 



Appendix. 323 

might have recovered in trover, trespass, or detinue, 
against the defendants, who actually took the money." 
(Mr. Clay, page 797.) 

In recent cases the discussion has pressed into wider 
bounds. See the opinion of Mr. Justice Matthews in 
Poindexter against Greenhow. 

Your obedient servant, 

John Scott, 

Of Fauquier. 

[This newspaper article was written and published immediately 
after the final decision of the cases.] 



CHISWICK PRESS :— C. WHITTINGHAM AND CO., TOOKS COURT, 
CHANCERY LANE. 



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